TIME WARNER INC.
TIME WARNER COMPANIES, INC.
TURNER BROADCASTING SYSTEM, INC.
Underwriting Agreement
[________], 199_
New York, New York
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Time Warner Inc., a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, the principal amount of [the securities] identified in Schedule
I hereto (the "Debt Securities"), to be issued under an indenture (as from time
to time amended or supplemented, the "Indenture") dated as of [__________,
____], among the Company, Time Warner Companies, Inc., a Delaware corporation
("TWC"), Turner Broadcasting System, Inc., a Georgia corporation ("TBS", and,
together with TWC, the "Guarantors"), and The Chase Manhattan Bank, as trustee
(the "Trustee"), providing for the issuance of debt securities in one or more
series, all of which will be entitled to the benefit of the Guarantees referred
to below. Each of TWC and TBS is a wholly owned subsidiary of the Company.
Pursuant to the Indenture, each of TWC and TBS, as primary obligor and not
merely as surety, has agreed to irrevocably and unconditionally guarantee
(together, the "Guarantees"; and together with the Debt Securities, the
"Securities"), to each holder of Debt Securities and to the Trustee, (i) the
full and punctual payment of principal of and interest on the Debt Securities
when due, whether at maturity, by acceleration, by redemption or otherwise, and
all other monetary obligations of the Company under the Indenture and the Debt
Securities and (ii) the full and punctual
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performance within applicable grace periods of all other obligations of the
Company under the Indenture and the Debt Securities. If the firm or firms listed
in Schedule II hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives", as used herein,
shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. Each of the Company, TWC and
TBS represents and warrants to, and agrees with, each Underwriter as set forth
below in this Section 1. Certain terms used in this Section 1 are defined in
paragraph (q) hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and,
if the offering of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company and the Guarantors meet the requirements
for the use of Form S-3 under the Securities Act of 1933, as
amended (the "Act"), and have filed with the Securities and
Exchange Commission (the "Commission") a registration statement
(the file number of which is set forth in Schedule I hereto) on
such Form, including a basic prospectus, for registration under
the Act of the offering and sale of the Securities. The Company
and the Guarantors may have filed one or more amendments thereto,
and may have used a Preliminary Final Prospectus, each of which
has previously been furnished to you. Such registration
statement, as so amended, has become effective. The offering of
the Securities is a Delayed Offering and, although the Basic
Prospectus may not include all the information with respect to
the Securities and the offering thereof required by the Act and
the rules thereunder to be included in the Final Prospectus, the
Basic Prospectus includes all such information required by the
Act and the rules thereunder to be included therein as of the
Effective Date. The Company and the Guarantors will next file
with the Commission pursuant to Rules 415 and 424(b)(2) or (5) a
final supplement to the form of prospectus included in such
registration statement relating to the Securities and the
offering thereof. As filed, such final prospectus supplement
shall include all required information with respect to the
Securities and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the Company
and the Guarantors have advised you, prior to the Execution Time,
will be included or made therein.
(ii) The Company and the Guarantors meet the requirements
for the use of Form S-3 under the Act and have filed with the
Commission a registration statement (the file number of which is
set forth in Schedule I hereto) on such Form, including a basic
prospectus, for registration under the
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Act of the offering and sale of the Securities. The Company and
the Guarantors may have filed one or more amendments thereto,
including a Preliminary Final Prospectus, each of which has
previously been furnished to you. The Company and the Guarantors
will next file with the Commission either (x) a final prospectus
supplement relating to the Securities in accordance with Rules
430A and 424(b)(1) or (4), or (y) prior to the effectiveness of
such registration statement, an amendment to such registration
statement, including the form of final prospectus supplement. In
the case of clause (x), the Company and the Guarantors have
included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be
included in the Final Prospectus with respect to the Securities
and the offering thereof. As filed, such final prospectus
supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with
all other such required information, with respect to the
Securities and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the Company
and the Guarantors have advised you, prior to the Execution Time,
will be included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the Trust
Indenture Act of 1939 (the "Trust Indenture Act") and the respective
rules thereunder; on the Effective Date, the Registration Statement did
not or will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the Effective
Date and on the Closing Date the Indenture did or will comply in all
material respects with the requirements of the Trust Indenture Act and
the rules thereunder; and, on the Effective Date, the Final Prospectus,
if not filed pursuant to Rule 424(b), did not or will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date, the
Final Prospectus (together with any supplement thereto) will not,
include any 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;
provided, however, that the Company and the Guarantors make no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-l) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement
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thereto) in reliance upon and in conformity with information furnished
in writing to the Company or either Guarantor by or on behalf of any
Underwriter through the Representatives specifically for inclusion in
the Registration Statement or the Final Prospectus (or any supplement
thereto).
(c) (1) Each of the Company and TWC is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority under such laws to own its
properties and conduct its business as described in the Basic
Prospectus, and any amendment or supplement thereto, and to enter into
and perform its obligations under this Agreement; and each of the
Company, TWC and TBS is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which
it owns or leases property of a nature, or transacts business of a type,
that would make such qualification necessary, except to the extent that
the failure to so qualify or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, considered
as one enterprise.
(2) TBS is validly existing as a corporation in good standing
under the laws of the State of Georgia, with full corporate power and
authority under such laws to own its properties and conduct its business
as described in the Basic Prospectus, and any amendment or supplement
thereto, and to enter into and perform its obligations under this
Agreement.
(d) Each of the Company's significant subsidiaries, as such term
is defined in Rule 1-02(w) of Regulation S-X under the Act, is validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, with full power and authority under such
laws to own its properties and conduct its business as described in the
Basic Prospectus, and any amendment or supplement thereto, and is duly
qualified to transact business as a foreign corporation or partnership
and is in good standing in each other jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that would
make such qualification necessary, except to the extent that the failure
to so qualify or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise.
(e) The Company's authorized equity capitalization is as set
forth in the Basic Prospectus, and any amendment or supplement thereto;
all of the outstanding capital stock of the Guarantors is owned,
directly or indirectly, by the Company, free and clear of all liens,
encumbrances, equities or claims.
(f) There is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or body or any
arbitrator involving the Company, TWC or TBS or any of their respective
subsidiaries of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the
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Basic Prospectus, and any amendment or supplement thereto, and there is
no franchise, contract or other document of a character required to be
described in the Registration Statement or Basic Prospectus, and any
amendment or supplement thereto, or to be filed as an exhibit, which is
not described or filed as required.
(g) This Agreement has been duly authorized, executed and
delivered by each of the Company, TWC and TBS.
(h) No consent, approval, authorization or order of any court or
governmental agency or body is required for the authorization, issuance,
sale and delivery of the Securities by the Company and the Guarantors or
the consummation of the transactions contemplated by this Agreement or
in any Delayed Delivery Contracts, except such as have been obtained
under the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals as have been
obtained.
(i) The execution and delivery of this Agreement and the
Indenture by the Company, TWC and TBS, the issuance, sale and delivery
of Debt Securities by the Company, the issuance and delivery of their
respective guarantees by TWC and TBS and the consummation by the
Company, TWC and TBS of the transactions contemplated in this Agreement,
the Indenture and the Registration Statement and compliance by the
Company, TWC and TBS with the terms of this Agreement or any Delayed
Delivery Contracts do not and will not result in any violation of the
Certificate of Incorporation, as amended, or By-laws, as amended, of the
Company, TWC or TBS, and do not and will not conflict with, or result in
a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, TWC or TBS,
under (i) any indenture, mortgage or loan agreement, or any other
agreement or instrument, to which the Company, TWC or TBS is a party or
by which any of them may be bound or to which any of their properties
may be subject (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise), (ii) any existing applicable law, rule or
regulation (except for such conflicts, breaches, liens, charges or
encumbrances that would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise, and other than the securities or blue sky laws of
various jurisdictions), or (iii) any judgment, order or decree of any
government, governmental instrumentality or court having jurisdiction
over the Company, TWC or TBS or any of their properties.
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(j) The documents incorporated by reference in the Basic
Prospectus, and any amendment or supplement thereto, as of the dates
they were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act.
(k) The Securities conform in all material respects to the
description thereof contained in the Basic Prospectus, and any amendment
or supplement thereto; if any of the Securities are to be listed on any
stock exchange, authorization therefor has been given, subject to
official notice of issuance and evidence of satisfactory distribution,
or the Company and the Guarantors have no reason to believe that such
Securities will not be authorized for listing, subject to official
notice of issuance and evidence of satisfactory distribution.
(l) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and, assuming due authorization, execution and delivery
by the Trustee, constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms (subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other laws affecting creditors' rights generally from time
to time in effect and subject as to enforceability to general principles
of equity, regardless of whether considered in a proceeding in equity or
at law); and the Debt Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant to
this Agreement, in the case of the Underwriters' Securities, or by the
purchasers thereof pursuant to Delayed Delivery Contracts, in the case
of any Contract Securities, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture,
subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights
generally from time to time in effect and subject as to enforceability
to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.
(m) The Indenture has been duly authorized, executed and
delivered by each of TWC and TBS and constitutes a legal, valid and
binding instrument enforceable against each of TWC and TBS in accordance
with its terms (subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other laws affecting creditors'
rights generally from time to time in effect and subject as to
enforceability to general principles of equity, regardless of whether
considered in a proceeding in equity or at law).
(n) Each Delayed Delivery Contract that has been executed by the
Company, TWC and TBS has been duly authorized, executed and delivered by
the Company, TWC and TBS, respectively, and, assuming the due
authorization, execution and delivery by the purchaser thereunder, is a
valid and binding obligation
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of the Company, TWC and TBS enforceable against the Company, TWC and
TBS, respectively, in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights
generally from time to time in effect and subject as to enforceability
to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.
(o) Each firm of independent accountants, which is reporting upon
certain audited or reviewed financial statements and schedules included
or incorporated by reference in the Registration Statement, are
independent auditors with respect to the financial statements covered by
the audit or review of such firm, in accordance with the provisions of
the Exchange Act and the Act and the respective applicable published
rules and regulations thereunder.
(p) The consolidated financial statements and the related notes
of each of the Company, TWE and any other person included or
incorporated by reference in the Registration Statement (including the
supplementary summary unaudited financial information of TWC and TBS)
present fairly in accordance with generally accepted accounting
principles the consolidated financial position of each of the Company,
TWC, TBS, TWE and any such other person as of the dates indicated and
the consolidated results of operations of each of the Company, TWC, TBS,
TWE and any such other person and cash flows of each of the Company and
TWE -for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except as
otherwise noted therein and subject, in the case of interim statements,
to normal year-end audit adjustments. The financial statement schedules
included or incorporated by reference in the Registration Statement
present fairly in accordance with generally accepted accounting
principles the information required to be stated therein. Any pro forma
financial statements of the Company, TWC or TBS and other pro forma
financial information included or incorporated by reference in the
Registration Statement present fairly the information shown therein.
Such pro forma financial statements and other pro forma financial
information, to the extent required, have been prepared in accordance
with applicable rules and guidelines of the Commission, if any, with
respect thereto, have been properly compiled on the pro forma bases
described therein, and, in the opinion of the Company, TWC and TBS, the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(q) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Effective Date" shall mean each
date that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective and each date after the
date hereof on which a document incorporated by reference in the
Registration Statement is filed. "Execution Time"
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shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in the case of a
Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary
Final Prospectus" shall mean any preliminary prospectus supplement to
the Basic Prospectus which describes the Securities and the offering
thereof and is used prior to filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Securities, including the Basic Prospectus, included in the Registration
Statement at the Effective Date. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended at
the Execution Time (or, if not effective at the Execution Time, in the
form in which it shall become effective) and, in the event any
post-effective amendment thereto becomes effective prior to the Closing
Date (as hereinafter defined), shall also mean such registration
statement as so amended. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as
provided by Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and
"Regulation S-K" refer to such rules or regulation under the Act. "Rule
430A Information" means information with respect to the Securities and
the offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. All
references in this Agreement to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under
the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be; all
references in this Agreement to financial statements and schedules and
other information that is "contained", "included" or "stated" in the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial
statements and schedules and other information that are or are deemed to
be incorporated by reference in the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
mean and include the filing of any document under the Exchange Act after
the Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by
reference. A "Non-Delayed Offering" shall mean an offering of securities
which is intended to commence promptly after the effective date of a
registration statement, with the result that,
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pursuant to Rules 415 and 430A, all information (other than Rule 430A
Information) with respect to the securities so offered must be included
in such registration statement at the effective date thereof. A "Delayed
Offering" shall mean an offering of securities pursuant to Rule 415
which does not commence promptly after the effective date of a
registration statement, with the result that only information required
pursuant to Rule 415 need be included in such registration statement at
the effective date thereof with respect to the securities so offered.
Whether the offering of the Securities is a Non-Delayed Offering or a
Delayed Offering shall be set forth in Schedule I hereto.
(r) None of the Company, TWC or TBS is an "investment company" or
an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company at the purchase price for the Debt
Securities set forth in Schedule I hereto, the principal amount of Debt
Securities set forth opposite such Underwriter's name in Schedule II hereto,
except that, if Schedule I hereto provides for the sale of Debt Securities
pursuant to delayed delivery arrangements, the respective principal amounts of
Debt Securities to be purchased by the Underwriters shall be as set forth in
Schedule II hereto less the respective amounts of Contract Securities determined
as provided below. Debt Securities to be purchased by the Underwriters are
herein sometimes called the "Underwriters' Securities" and Debt Securities to be
purchased pursuant to Delayed Delivery Contracts as hereinafter provided are
herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Debt Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes therein
as the Company, TWC or TBS may authorize or approve. The Underwriters will
endeavor to make such arrangements and, as compensation therefor, the Company
will pay to the Representatives, for the account of the Underwriters, on the
Closing Date, the percentage set forth in Schedule I hereto of the principal
amount of the Debt Securities for which Delayed Delivery Contracts are made.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. The Company and the
Guarantors will enter into Delayed Delivery Contracts in all cases where sales
of Contract Securities arranged by the Underwriters have been approved by the
Company but, except as the Company may otherwise agree, each such Delayed
Delivery Contract must be for not less than the minimum principal amount set
forth in Schedule I hereto and the aggregate principal amount of Contract
Securities may not exceed the maximum aggregate principal amount set forth in
Schedule I hereto. The Underwriters will not have any responsibility in respect
of the validity or performance of Delayed Delivery
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Contracts. The principal amount of Debt Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by an amount
which shall bear the same proportion to the total principal amount of Contract
Securities as the principal amount of Debt Securities set forth opposite the
name of such Underwriter bears to the aggregate principal amount set forth in
Schedule II hereto, except to the extent that you determine that such reduction
shall be otherwise than in such proportion and so advise the Company in writing;
provided, however, that the total principal amount of Debt Securities to be
purchased by all Underwriters shall be the aggregate principal amount set forth
in Schedule II hereto less the aggregate principal amount of Contract
Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto, which date and time may be postponed to a date not later than
five business days after such specified date by agreement between the
Representatives, acting jointly and without regard to any agreement among
underwriters, and the Company or as provided in Section 8 hereof (such date and
time of delivery and payment for the Underwriters' Securities being herein
called the "Closing Date"). Delivery of the Underwriters' Securities shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer or certified or official bank check or checks drawn on
or by a New York Clearing House bank and payable in same day funds (unless
another form of payment is specified in Schedule I hereto). Delivery of the
Underwriters' Securities shall be made at such location as the Representatives
shall reasonably designate on the Closing Date and payment for the Securities
shall be made at the office specified in Schedule I hereto. Certificates for the
Underwriters' Securities shall be registered in such names and in such
denominations as the Representatives may request not less than one full business
day in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available
for inspection, checking and packaging by the Representatives in New York, New
York, not later than 1:00 PM on the business day prior to the Closing Date.
4. Agreements. The Company and the Guarantors agree with the
several Underwriters that:
(a) Each of the Company, TWC and TBS will use its best efforts to
cause the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, to become effective. Prior to the
termination of the offering of the Securities, none of the Company, TWC
and TBS will file any amendment to the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus unless the Company or a Guarantor
has furnished you a copy for your review prior to filing or will file
any such proposed amendment or supplement to which you reasonably object
on a timely basis (other than filings of periodic reports pursuant to
Section 13(a) under the
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Exchange Act). Subject to the foregoing sentence, the Company and the
Guarantors will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company, TWC and TBS will promptly advise the
Representatives (i) when the Registration Statement, if not effective at
the Execution Time, and any amendment thereto, shall have become
effective, (ii) when the Final Prospectus, and any supplement thereto,
shall have been filed with the Commission pursuant to Rule 424(b), (iii)
when, prior to termination of the offering of each series of Securities,
any amendment to the Registration Statement shall have been filed or
become effective, (iv) of any request by the Commission for any
amendment to the Registration Statement or supplement to the Final
Prospectus or for any additional information relating to the offering of
the Securities, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (vi)
of the receipt by the Company, TWC or TBS of any notification with
respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. Each of the Company, TWC and TBS will use
its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result
of which the Final Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company and the Guarantors promptly will prepare
and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or effect such compliance.
(c) As soon as practicable, the Company and the Guarantors will
make generally available to their respective security holders and to the
Representatives an earnings statement or statements of each of the
Company, TWC and TBS and their respective subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) If and to the extent specified in Schedule I, each of the
Company, TWC and TBS will use its reasonable best efforts to cause the
Securities to be duly authorized for listing on the New York Stock
Exchange and to be registered under the Exchange Act.
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(e) For a period of three years after the Closing Date, the
Company will furnish to you and, upon request, to each Underwriter,
copies of all annual reports, quarterly reports and current reports
filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission, and such other
documents, reports and information as shall be furnished by the Company
to its public stockholders generally.
(f) The proceeds of the offering of the Securities will be
applied as set forth in the Final Prospectus.
(g) The Company, TWC or TBS will furnish to the Representatives
and counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request.
(h) The Company and the Guarantors will pay and bear all costs
and expenses incident to the performance of their obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, any preliminary prospectus supplements
and the Basic Prospectus, the Preliminary Final Prospectus and the Final
Prospectus and any amendments or supplements thereto, and the cost of
furnishing copies thereof to the Underwriters, (ii) the preparation,
printing and distribution of this Agreement, the Indenture, the
Securities, any Delayed Delivery Contracts, the Blue Sky Survey and the
Legal Investment Survey, (iii) the delivery of the Securities to the
Underwriters, (iv) the fees and disbursements of the Company's and the
Guarantors' counsel and the accountants required hereby to provide
"comfort letters", (v) the qualification of the Securities under the
applicable securities laws in accordance with Section 4(i) and any
filing for review of the offering with the National Association of
Securities Dealers, Inc., including filing fees and fees and
disbursements of counsel for the Underwriters in connection therewith
and in connection with the Blue Sky Survey and the Legal Investment
Survey, (vi) any fees charged by rating agencies for rating the
Securities, (vii) the fees and expenses of the Trustee, including the
fees and disbursements of counsel for the Trustee, in connection with
the Indenture and the Securities, (viii) any expenses and listing fees
in connection with the listing of the Securities, (ix) the cost and
charges of any transfer agent or registrar and (x) the costs of
qualifying the Securities with The Depository Trust Company.
(i) The Company and the Guarantors will arrange for the
qualification of each series of Securities for distribution, offering
and sale under the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as
required for the distribution of such series of Securities and will
13
arrange for the determination of the legality of the Securities for
purchase by institutional investors; provided, however, that none of the
Company, TWC or TBS shall be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to qualify but for this Section 4(i),
(ii) file any general consent to service of process or (iii) subject
itself to taxation in any such jurisdiction if it is not so subject.
(j) Until the Closing Date or such other date as may be specified
in Schedule I, none of the Company, TWC or TBS (and if so specified in
Schedule I, TWE) will, without the consent of the managing underwriter
specified in Schedule I, offer, sell or contract to sell, or announce
the offering of, any debt securities designed or intended to be traded
or distributed in the public or private securities markets; provided,
however, that the foregoing shall not prohibit (i) the Company, TWC, TBS
or TWE from issuing long-term debt as all or part of the consideration
in any merger or acquisition and/or in connection with the settlement of
any litigation, (ii) the Company, TWC, TBS or TWE from filing with the
Commission a "shelf" registration statement for the offering of
securities under Rule 415 of the Act (or any similar rule that may be
adopted by the Commission) or amending any existing shelf registration
statement provided that such securities are not issued until the
business day following the Closing Date or such other date as may be
specified in Schedule I or (iii) any of the foregoing from issuing
commercial paper.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy in all material respects of the representations and
warranties on the part of the Company and the Guarantors contained herein as of
the Execution Time and the Closing Date, to the accuracy in all material
respects of the statements of the Company and the Guarantors made in any
certificates pursuant to the provisions hereof, to the performance by each of
the Company, TWC and TBS of its obligations hereunder, to the due execution and
delivery of the Indenture, to the absence of any event or condition which would
give you the right to terminate this Agreement and to the following additional
conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to a
later time, the Registration Statement will become effective not later
than (i) 6:00 PM New York City time, on the date of determination of the
public offering price, if such determination occurred at or prior to
3:00 PM New York City time on such date or (ii) 12:00 Noon on the
business day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Final Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Final Prospectus, and
any such supplement, shall have been filed in the manner and within the
time period required by Rule 424(b); and at the Closing Date no stop
order suspending the effectiveness of the
14
Registration Statement shall have been issued under the Act or
proceedings therefor initiated or threatened by the Commission.
(b) At the Closing Date, the Company shall have furnished to you
the opinion of Peter R. Haje, General Counsel to the Company, dated the
Closing Date, substantially in the form of Exhibit A hereto.
(c) At the Closing Date, the Company shall have furnished to you
the opinion and statement of Cravath, Swaine & Moore, counsel to the
Company and the Guarantors, each dated the Closing Date, substantially
in the form of Exhibit B and Exhibit C hereto, respectively.
(d) The Representatives shall have received from Shearman &
Sterling, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, any Delayed Delivery Contracts, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company and the Guarantors shall have
furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(e) (1) The Company shall have furnished to the Representatives a
certificate of the Company, signed by any two officers who are an
Executive or Senior Vice President of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Final Prospectus, any
supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company, TWC
and TBS in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as if
made on the Closing Date and each of the Company, TWC and TBS has
complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change in
the condition (financial or otherwise), earnings, or business
prospects of the Company and its subsidiaries, considered as a
whole, whether or not arising from transactions in
15
the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(2) TWC shall have furnished to the Representatives a certificate
of TWC, signed by any two officers who are an Executive or Senior Vice
President of TWC, dated the Closing Date, to the effect that the signers
of such certificate have carefully examined the Registration Statement,
the Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that the representations and warranties of TWC in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and TWC
has complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date.
(3) TBS shall have furnished to the Representatives a certificate
of TBS, signed by any two officers who are Vice Presidents of TBS, dated
the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Final
Prospectus, any supplement to the Final Prospectus and this Agreement
and that the representations and warranties of TBS in this Agreement are
true and correct in all material respects on and as of the Closing Date
with the same effect as if made on the Closing Date and TBS has complied
with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the Closing Date.
(f) At the Closing Date, and, if specified in Schedule I, at the
Execution Time, Ernst & Young LLP shall have furnished to the
Representatives a letter or letters, dated respectively as of the
Closing Date and the Execution Time, in form and substance satisfactory
to the Representatives, confirming that they are independent auditors
with respect to the Company, TWC, TBS, and TWE within the meaning of the
Act and the Exchange Act and the respective applicable published rules
and regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules of the Company and TWE included or
incorporated in the Registration Statement and the Final
Prospectus comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements (including the notes thereto and the
supplementary summary unaudited financial information of TWC and
TBS) made available by the Company, TWC, TBS and TWE and their
respective consolidated subsidiaries; carrying out certain
specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set
16
forth in such letter; a reading of the minutes of the meetings of
the stockholders, directors and executive, finance and audit
committees of the Company and TWE and their respective
consolidated subsidiaries; and inquiries of certain officials of
the Company, TWC, TBS and TWE who have responsibility for
financial and accounting matters of the Company, TWC, TBS and TWE
and their respective consolidated subsidiaries as to transactions
and events subsequent to the date of the most recent audited
financial statements in or incorporated in the Final Prospectus,
and such other inquiries and procedures as may be specified in
such letter, nothing came to their attention which caused them to
believe that:
(1) any of such unaudited financial statements
included or incorporated in the Registration Statement and
the Final Prospectus do not comply in form in all material
respects with applicable accounting requirements of the
Act and the Exchange Act and with the published rules and
regulations of the Commission with respect to financial
statements included or incorporated in quarterly reports
on Form 10-Q under the Exchange Act; or said unaudited
financial statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus; or
(2) with respect to the period subsequent to the
date of the most recent unaudited financial statements in
or incorporated in the Registration Statement and the
Final Prospectus, there were any increases, at a specified
date not more than five business days prior to the date of
the letter, in the long-term debt of the Company, TWE and
certain related unconsolidated subsidiaries (together with
TWE, the "Entertainment Group") and their respective
consolidated subsidiaries or any decreases in
stockholders' equity or the consolidated capital stock of
the Company, TWE and the Entertainment Group as compared
with the amounts shown on the most recent consolidated
balance sheet included or incorporated in the Registration
Statement and the Final Prospectus for such entities, or
for the period from the date of the most recent unaudited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus for such
entities to such specified date there were any decreases,
as compared with the corresponding period in the preceding
year, in revenues, income before income taxes (or any
increase in the loss before income taxes) or net income
(or any increase in net loss), except in all instances for
decreases or increases disclosed in the Final Prospectus;
17
(iii) they are unable to and do not express any opinion on
the pro forma adjustments to the financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectus or on the pro forma adjustments applied to the
historical amounts included or incorporated by reference in the
Registration Statement and the Final Prospectus; however, for
purposes of such letter they have:
(1) read the pro forma adjustments to such
financial statements;
(2) made inquiries of certain officials of the
Company, TWC, TBS and TWE who have responsibility for
financial and accounting matters about the basis for their
determination of the pro forma adjustments to such
financial statements and whether such pro forma
adjustments comply as to form in all material respects
with the applicable accounting requirements of Rule 11-02
of Regulation S-X; and
(3) proved the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts included or incorporated by reference in the
Registration Statement and the Final Prospectus; and
on the basis of such procedures, and such other inquiries and
procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that the pro forma
adjustments to the financial statements included or incorporated
by reference in the Registration Statement and the Final
Prospectus do not comply as to form in all material respects with
the applicable requirements of Rule 11-02 of Regulation S-X and
that such pro forma adjustments have not been properly applied to
the historical amounts in the compilation of such financial
statements; and
(iv) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibits 12, 12.1 and
12.2 to the Registration Statement agrees with the accounting
records of the Company and its subsidiaries, TWC and its
subsidiaries, TBS and its subsidiaries or TWE and its
subsidiaries, as the case may be, excluding any questions of
legal interpretation.
18
(g) At the Closing Date and, if and to the extent specified in
Schedule I, at the Execution Time, each other firm of independent
accountants who audited or reviewed financial statements included or
incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter or letters, dated respectively
as of the Closing Date and the Execution Time, in form and substance
satisfactory to the Representatives, confirming that they are
independent auditors with respect to the financial statements audited or
reviewed by them within the meaning of the Act and the Exchange Act and
the respective applicable published rules and regulations thereunder and
to the same effect as the letter or letters of Ernst & Young LLP as
described in Section 5(f)(i) and 5(f)(ii)(1) hereto.
(h) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any decrease or
increase specified in the letter or letters referred to in paragraph (f)
of this Section 5 or (ii) any change, or any development involving a
prospective change, in or affecting the business (including the results
of operations or management) or properties of the Company and its
subsidiaries the effect of which, in any case referred to in clause (i)
or (ii) above, is, in the reasonable judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of any series of Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any supplement thereto).
(i) Subsequent to the Execution Time, (i) there shall not have
been any downgrade in the credit ratings of any of the Company's, TWC's
or TBS's debt securities by Moody's Investor Service, Inc. or Standard &
Poor's Ratings Group, and (ii) none of the Company, TWC or TBS shall
have been placed under special surveillance, with negative implications,
by Moody's Investor Service, Inc. or Standard & Poor's Ratings Group.
(j) Prior to the Closing Date, the Company and the Guarantors
shall have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
(k) The Company shall have accepted the Delayed Delivery
Contracts in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be
19
cancelled at, or at any time prior to, the Closing Date by the Representatives
and such cancellation shall be without liability of any party to any other
party, except to the extent provided in Sections 4 and 6. Notice of such
cancellation shall be given to the Company, TWC or TBS in writing or by
telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company, TWC
or TBS to perform any agreement herein or comply with any provision hereof other
than by reason of a default by any of the Underwriters, the Company and the
Guarantors will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
7. Indemnification and Contribution. (a) Each of the Company, TWC
and TBS agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that none of the Company, TWC or TBS
will be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon (i) any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company, TWC and TBS by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein or (ii) that part of the
Registration Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee. This
indemnity agreement will be in addition to any liability which the Company, TWC
or TBS may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless each of the Company, TWC and TBS, each of their respective directors,
each of their respective officers who signs the Registration Statement, and each
person who controls the Company,
20
TWC or TBS within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company, TWC and TBS to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Company, TWC and TBS by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. Each
of the Company, TWC and TBS acknowledges that the statements set forth [in the
last paragraph of the cover page, the first and third paragraphs under the
heading "Underwriters" and, if Schedule I hereto provides for sales of
Securities pursuant to delayed delivery arrangements, in the last sentence under
the heading "Delayed Delivery Arrangements"] in any Preliminary Final Prospectus
or the Final Prospectus constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in the documents referred
to in the foregoing indemnity, and you, as the Representatives, confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party (it being
understood, however, that in connection with such action, the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, representing the indemnified parties who are
parties to such action or actions), (iii) the indemnifying party shall not have
employed counsel
21
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, TWC, TBS and the Underwriters
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company,
the Guarantors and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company, TWC and TBS on one hand, and by the Underwriters, on the other hand,
from the offering of the Securities; provided, however, that in no case shall
any Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company, TWC,
TBS and the Underwriters shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company and the Guarantors and of the Underwriters in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company and the
Guarantors shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses), and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Final Prospectus. Relative
fault shall be determined by reference to whether any alleged untrue statement
or omission relates to information provided by the Company, TWC or TBS or the
Underwriters. The Company, the Guarantors and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company, TWC or TBS within the
meaning of either the Act or the Exchange Act, each officer of the Company, TWC
or TBS who shall have signed the
22
Registration Statement and each director of the Company, TWC or TBS shall have
the same rights to contribution as the Company and the Guarantors, subject in
each case to the applicable terms and conditions of this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters
shall fail on the Closing Date to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions for
each of the Debt Securities which such Underwriter failed to purchase which the
amount of the Debt Securities set forth opposite their names in Schedule II
hereto bears to the aggregate amount of such Debt Securities set forth opposite
the names of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all of the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the Company
and the Guarantors. In the event of a default by any Underwriter as set forth in
this Section 8, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company, the Guarantors and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company,
TWC or TBS prior to delivery of and payment for the Securities, if prior to such
time (i) trading in the Company's common stock or any of the Company's, TWC's or
TBS's debt securities shall have been suspended by the Commission or the New
York Stock Exchange or trading in securities generally on such Exchange shall
have been suspended or limited or minimum or maximum prices shall have been
established on such Exchange, or maximum ranges for prices for securities have
been required, by such Exchange or by order of the Commission or any other
governmental authority, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any new outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets of the United States is such as to make it,
in the judgment of the Representatives, impracticable or inadvisable to proceed
with the offering or delivery of a series of Securities as contemplated by the
Final Prospectus (exclusive of any supplement thereto). If this Agreement is
terminated pursuant to this Section, such termination shall be without liability
of any party to any other party, except to the extent provided in Sections 4 and
6.
23
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, TWC or TBS or any of their respective officers and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company, TWC or TBS, or any of the officers, directors or controlling
persons referred to in Section 7 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, TWC or TBS, will be mailed,
delivered or telegraphed and confirmed to it care of the Company at 75
Rockefeller Plaza, New York, New York 10019, attention of General Counsel.
12. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
14. Business Day. For purposes of this Agreement, "business day"
means any day on which the New York Stock Exchange is open for trading.
15. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, TWC, TBS and the several Underwriters.
Very truly yours,
TIME WARNER INC.
By____________________________________
Name:
Title:
TIME WARNER COMPANIES, INC.
By____________________________________
Name:
Title:
TURNER BROADCASTING SYSTEM, INC.
By____________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
[---------]
By: [________]
By____________________________________
Name:
Title:
For themselves and the other several
Underwriters, if any, named in Schedule
II to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement:
Registration Statement:
Representatives:
Managing Underwriter:
Title, Purchase Price and Description of Securities:
-----------------------:
Title:
Principal amount:
Interest rate:
Interest payment dates:
Date of maturity:
Purchase price (include accrued
interest or amortization, if
any):
Initial public offering price:
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of funds payable at Closing: Immediately available funds
Type of Offering: Delayed Offering
Delayed Delivery Arrangements: Not Applicable
Listing requirements:
Comfort letter at Execution Time:
SCHEDULE II
[Name of Securities]:
Principal
Amount
to
Underwriters be Purchased
Total.............................
EXHIBIT A
FORM OF OPINION OF PETER R. HAJE, ESQ.
(i) each of the Company, TWC and TBS is validly existing as a
corporation in good standing under the laws of the jurisdiction in which
it is chartered or organized, with full corporate power and authority
under such laws to own its properties and conduct its business as
described in the Final Prospectus and each of the Company, TWC and TBS
is duly qualified to transact business as a foreign corporation and is
in good standing in each other jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make
such qualification necessary, except to the extent that the failure to
so qualify or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise;
(ii) each of the Company's significant subsidiaries, as such term
is defined in Rule 1-02(w) of Regulation S-X under the Act, is validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, with full power and authority under such
laws to own its properties and conduct its business as described in the
Basic Prospectus, and any amendment or supplement thereto, and is duly
qualified to transact business as a foreign corporation or partnership
and is in good standing in each other jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that would
make such qualification necessary, except to the extent that the failure
to so qualify or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise;
(iii) all of the outstanding capital stock of TWC and TBS is
owned, directly or indirectly, by the Company free and clear of all
liens, encumbrances, equities or claims; and the Company's authorized
equity capitalization is as set forth in the Final Prospectus;
(iv) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company, TWC or TBS or any of their respective subsidiaries of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to be
filed as an exhibit, which is not described or filed as required;
(v) no authorization, approval, consent, order or license of any
government, governmental instrumentality, agency or body or court (other
than such as has been obtained under the Act and such as may be required
under the securities
A-2
or blue sky laws of various jurisdictions) is required for the
authorization, issuance, sale and delivery of the Securities by the
Company, TWC and TBS and the consummation by the Company, TWC and TBS of
the transactions contemplated by the Underwriting Agreement;
(vi) the Indenture and the Underwriting Agreement have been duly
authorized, executed and delivered by each of the Company, TWC and TBS;
(vii) the execution and delivery of the Underwriting Agreement
and the Indenture by the Company, TWC and TBS, the issuance, sale and
delivery of the Debt Securities by the Company, the issuance and
delivery of their respective guarantees by TWC and TBS, and the
consummation by the Company, TWC and TBS of the transactions
contemplated in the Underwriting Agreement, the Indenture and the
Registration Statement and compliance by the Company, TWC and TBS with
the terms of the Underwriting Agreement or any Delayed Delivery
Contracts do not and will not result in any violation of the Certificate
of Incorporation, as amended, or By-laws, as amended, of the Company,
TWC or TBS and do not and will not conflict with, or result in a breach
of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company, TWC or TBS under (i) any
indenture, mortgage or loan agreement, or any other agreement or
instrument known to such counsel, to which the Company, TWC or TBS is a
party or by which any of them may be bound or to which any of their
properties may be subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise), (ii) any existing
applicable law, rule or regulation (except for such conflicts, breaches,
liens, charges or encumbrances that would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, and other than the securities or blue sky
laws of various jurisdictions), or (iii) any judgment, order or decree
of any government, governmental instrumentality or court having
jurisdiction over the Company, TWC or TBS or any of their properties.
(viii) the documents incorporated by reference in the Final
Prospectus (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which such
counsel need express no opinion), as of the dates they were filed with
the Commission, complied as to form in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended.
In addition, such counsel shall also state as follows: As General
Counsel, I have reviewed and participated in the preparation of the Registration
Statement and the Final Prospectus, including the documents incorporated by
reference therein. In examining the Registration Statement and Final Prospectus,
I have necessarily assumed the correctness and
A-3
completeness of the statements made or included therein by the Company and the
Guarantors and take no responsibility therefor. However, in the course of the
preparation by the Company and the Guarantors of the Registration Statement and
the Final Prospectus, I have participated in conferences with certain officers
of, and accountants for, the Company and the Guarantors with respect thereto,
and my examination of the Registration Statement and Final Prospectus and my
discussions in the above-mentioned conferences did not disclose any information
which gave me reason to believe that the Registration Statement (except for the
financial statements and other financial or statistical data included therein or
omitted therefrom, as to which I express no opinion) at the time it became
effective included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, not misleading
or that the Final Prospectus (except as aforesaid), at its issue date or on the
date of this opinion, included or includes any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
United States, the State of New York and the General Corporation Law of the
State of Delaware, to the extent such counsel deems proper and specified in such
opinion, upon the opinion of other counsel of good standing whom such counsel
believes to be reliable and who are satisfactory to counsel for the
Underwriters; and (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company, TWC or TBS and
public officials.
EXHIBIT B
FORM OF OPINION OF CRAVATH, SWAINE & MOORE
(i) Based solely upon a certificate from the Secretary of State
of Delaware each of the Company and TWC is a corporation validly existing in
good standing under the laws of the State of Delaware, with full corporate power
and authority to own its properties and conduct its business as described in the
Final Prospectus;
(ii) the Securities conform in all material respects to the
description thereof contained in the Prospectus;
(iii) the Indenture has been duly authorized, executed and
delivered by each of the Company and TWC, has been duly qualified under the
Trust Indenture Act of 1939, and, assuming due authorization, execution and
delivery by TBS and the Trustee, constitutes a legal, valid and binding
obligation of the Company, TWC and TBS, enforceable against the Company, TWC and
TBS in accordance with its terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether considered in
a proceeding in equity or at law); and the Debt Securities have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Underwriters
pursuant to the Underwriting Agreement, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture (subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws affecting creditors' rights generally from time
to time in effect and subject to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity or at law);
(iv) the Registration Statement became effective under the
Securities Act on [____]; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to our 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; and
(v) the Underwriting Agreement has been duly authorized, executed
and delivered by the each of the Company and TWC;
We are admitted to practice in the State of New York, and we
express no opinion as to any matters governed by any law other than the law of
the State of New York, the Federal law of the United States of America and the
General Corporation Law of the
B-2
State of Delaware. In particular, we do not purport to pass on any matter
governed by the laws of the State of Georgia.
EXHIBIT C
FORM OF SIDE LETTER OF CRAVATH, SWAINE & MOORE
Although we have made certain inquiries and investigations in
connection with the preparation of the Registration Statement and the
Prospectus, the limitations inherent in the role of outside counsel are such
that we cannot and do not assume responsibility for the accuracy or completeness
of the statements made in the Registration Statement and Prospectus, except
insofar as such statements relate to us and except to the extent set forth in
paragraph (ii) of our opinion to you dated the date hereof. Subject to the
foregoing, we hereby advise you that our work in connection with this matter did
not disclose any information that gave us reason to believe that: (i) the
Registration Statement, at the time the Registration Statement became effective,
or the Prospectus, as of the date hereof, (except in each case the financial
statements and other information of an accounting, statistical or financial
nature included therein, and the Statement of Eligibility (Form T-1) included as
an exhibit to the Registration Statement, as to which we do not express any
view) were not appropriately responsive in all material respects to the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder; or (ii) the Registration Statement, at the time the
Registration Statement became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, at its issue date and at the date hereof, included or includes an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to made the statements therein, in the light of the
circumstances under which they were made, not misleading (in each case except
for the financial statements and other information of an accounting, statistical
or financial nature included therein, as to which we do not express any view).