TIME WARNER CABLE INC. Underwriting Agreement Floating Rate Notes due [Ÿ] [Ÿ]% Notes Due [Ÿ]
Exhibit 1.1
Floating Rate Notes due [Ÿ]
[Ÿ]% Notes Due [Ÿ]
[Ÿ]% Notes Due [Ÿ]
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Time Warner Cable Inc., a Delaware corporation (the “Company”), proposes to issue and sell to
the underwriters named in Schedule II hereto (the “Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the respective principal amounts of its Floating
Rate Notes due [Ÿ] and [Ÿ]% Notes due [Ÿ] identified in Schedule I hereto
(collectively, the “Debt Securities”), to be issued under the indenture (as from time to time
amended or supplemented, the “Indenture”), dated as of [insert execution date of applicable
indenture], among the Company, TW NY Cable Holding Inc., a Delaware corporation (“TW NY”), Time
Warner Entertainment Company, L.P., a Delaware limited partnership (“TWE” and, together with TW NY,
the “Guarantors”) and The Bank of New York, 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 TW NY and TWE is a subsidiary of the Company. Pursuant to
the Indenture, each of TW NY and TWE, as primary obligor and not merely as surety, has agreed to
fully, 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 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.
All references in this Agreement to the Registration Statement, the Base Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed as of the relevant time and
date to refer to and include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3; all references in this Agreement to financial statements and schedules and other
information that is “contained”, “included”,
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“stated” or “set forth” in the Registration Statement, the Base 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 from time to time in the Registration Statement, the
Base 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
Base Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to mean
and include any document filed under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Base Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, that is or is deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 19 hereof.
1. Representations and Warranties. Each of the Company, TW NY and TWE represents and
warrants to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company and the Guarantors meet the requirements for the use of Form S-3 under
the Act, and have filed with the Commission an automatic shelf registration statement as
defined in Rule 405 (the file number of which is set forth in Schedule I hereto) on Form
S-3, including a base prospectus, for registration under the Act of the offering and sale
of the Securities. Such Registration Statement, including any amendments thereto filed
prior to the Execution Time, became effective upon filing not more than three years prior
to the Execution Time. No stop order suspending the effectiveness of the Registration
Statement has been issued under the Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated or
threatened by the Commission, and any request on the part of the Commission for additional
information has been complied with. The Company has not received from the Commission any
notice pursuant to Rule 401(g)(2) of the Act objecting to use of the automatic shelf
registration statement form. The Company and the Guarantors may have filed with the
Commission, as part of an amendment to the Registration Statement or pursuant to Rule
424(b), one or more Preliminary Final Prospectuses, each of which has previously been
furnished to you. The Company and the Guarantors will file with the Commission the Final
Prospectus relating to the Securities in accordance with Rule 424(b). As filed, such Final
Prospectus shall contain all information required by the Act and the rules thereunder, 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 Base 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.
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(b) On the Effective Date and the Execution Time, the Registration Statement did, and
when the Final Prospectus is first filed (if required) in accordance with Rule 424(b), and
on the Closing Date (as defined herein), the Final Prospectus (and any amendment or
supplement thereto) will, comply in all material respects with the applicable requirements
of the Act, the Exchange Act, the Trust Indenture Act and the respective rules thereunder;
on the Effective Date and the Execution Time, the Registration Statement did 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 as of its date and as of the
Closing Date, the Final Prospectus (together with any amendment or supplement thereto as of
such respective dates) 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-1) 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 thereto) in reliance upon and in conformity with information
furnished in writing to the Company or any Guarantor by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the Registration Statement or the
Final Prospectus (or any amendment or supplement thereto), it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 7(b) hereof.
(c) The Disclosure Package, at the Applicable Time, does not, or will not, as the case
may be, contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. The preceding sentence does not apply to statements
in or omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for use therein, it being understood and agreed that the only
such information furnished by or on behalf of any Underwriter consists of the information
described as such in Section 7(b) hereof.
(d) (i) At the time of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
Act (whether such amendment was by post-effective amendment, incorporated reports filed
pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the
time the Company or any person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c)) made any offer relating to the Securities in reliance on the
exemption in Rule 163
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and
(iv) at the Execution Time, the Company was or is (as the case may be) a “well-known seasoned
issuer” as defined in Rule 405.
(e) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of the
Rule 164(h)(2)) of the Securities and (ii) at the Execution Time (with such date being used
as the determination date for purposes of this clause (ii)), the Company was not and is not
an Ineligible Issuer (as defined in Rule 405), without taking into account any
determination by the Commission pursuant to Rule 405 that it is not necessary that the
Company be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed
pursuant to Section 4(b) hereto do not include any information that conflicts with the
information contained in the Registration Statement, including any document incorporated
therein and any prospectus supplement deemed to be a part thereof that has not been
superseded or modified. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for use therein, it being understood and agreed that the only
such information furnished by or on behalf of any Underwriter consists of the information
described as such in Section 7(b) hereof.
(g) Each of the Company, TW NY and TWE is validly existing as a corporation or limited
partnership, as the case may be, in good standing under the laws of the State of Delaware,
with full corporate or partnership power and authority, as the case may be, under such laws
to own its properties and conduct its business as described in the Disclosure Package and
the Final Prospectus and any amendment or supplement thereto, and to enter into and perform
its obligations under this Agreement; and each of the Company, TW NY and TWE is duly
qualified to transact business as a foreign corporation or limited partnership, as the case
may be, 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 (a “Material Adverse Effect”).
(h) 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 formation or organization, with full power and authority
under such laws to own its properties and conduct its business as described in the
Disclosure Package and the Final Prospectus, and is duly qualified to transact business as
a foreign corporation, limited liability company or partnership and is in good standing in
each other jurisdiction in which it owns or leases property of a nature, or transacts
business
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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.
(i) The Company’s authorized equity capitalization is as set forth in the Disclosure
Package and the Final Prospectus, and any amendment or supplement thereto; and except as
disclosed in the Disclosure Package, all of the outstanding capital stock or partnership
interests of the Guarantors, as applicable, is owned, directly or indirectly, by the
Company, free and clear of all liens, encumbrances, equities or
claims; all of the issued shares of the Company’s Class B Common Stock are owned directly or indirectly by Time
Warner Inc. (“Time Warner”).
(j) Except as disclosed in the Disclosure Package and the Final Prospectus, there is
no pending or, to our best knowledge, threatened action, suit or proceeding before any
court or governmental agency, authority or body or any arbitrator involving the Company or
any of its subsidiaries or any of their properties that would (i) materially and adversely
affect the ability of the Company or any Guarantor, as appropriate, to perform its
obligations under this Agreement, the Indenture or the Securities or (ii) would have a
Material Adverse Effect.
(k) This Agreement has been duly authorized, executed and delivered by each of the
Company, TW NY and TWE.
(l) Neither the Company nor any Guarantor is in violation or default of (i) any
provision of its charter, bylaws, limited partnership agreement or other organizational
documents, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other material agreement to which it is a party, or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having jurisdiction
over the Company or such Guarantor or any of its properties, as applicable, except in the
case of clauses (ii) or (iii), for such violations or defaults that would not have a
material adverse effect on the performance by the Company of this Agreement or a Material
Adverse Effect.
(m) 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, except such as have been or will be obtained under the Act, the Exchange Act,
the Trust Indenture 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.
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(n) The execution, delivery and performance of this Agreement and the Indenture by the
Company, TW NY and TWE, the issuance, sale and delivery of Debt Securities by the Company,
the issuance and delivery of their respective Guarantees by TW NY and TWE, and the
consummation by the Company, TW NY and TWE of the transactions contemplated in this
Agreement, the Indenture, the Disclosure Package and the Final Prospectus and compliance by
the Company, TW NY and TWE with the terms of this Agreement, the Indenture or the
Securities (i) do not and will not result in any violation of the Certificate of
Incorporation, as amended, or By-laws, as amended, of the Company or TW NY or the
certificate of limited partnership, as amended, or limited partnership agreement, as
amended, of TWE, and (ii) 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 or
of any Guarantor under (x) any indenture, mortgage or loan agreement, or any other
agreement or instrument, to which the Company or any Guarantor 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), (y) any existing applicable law, rule or regulation (except for
such conflicts, breaches, liens, charges or encumbrances that would not have a Material
Adverse Effect, and other than the securities or blue sky laws of any jurisdictions), or
(z) any judgment, order or decree of any government, governmental instrumentality or court
having jurisdiction over the Company or any Guarantor or any of their respective properties
(except for such conflicts, breaches, liens, charges or encumbrances that would not have a
Material Adverse Effect).
(o) The documents incorporated by reference in the Registration Statement, the
Disclosure Package and the Final 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; and any documents filed with the Commission
subsequent to the Execution Time and prior to the completion or termination of the offering
of the Securities that are deemed to be incorporated by reference into the Registration
Statement, the Disclosure Package and the Final Prospectus, will, when they are filed with
the Commission, comply as to form in all material respects with the requirements of the
Exchange Act.
(p) The Securities and the Indenture will conform in all material respects to the
description thereof contained in the Disclosure Package and the Final Prospectus and any
amendment or supplement thereto; if any of the Securities are to be listed on any stock
exchange or inter-dealer quotation system, 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.
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(q) The Indenture has been duly authorized, executed and delivered by the Company and
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 by the
Company, and, when the Debt Securities are executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant
to this Agreement, will constitute legal, valid and binding obligations of the Company,
entitled to the benefits of the Indenture, enforceable against the Company in accordance
with their 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.
(r) The Indenture has been duly authorized, executed and delivered by each of TW NY
and TWE and assuming due authorization, execution and delivery by the Trustee, constitutes
a legal, valid and binding instrument enforceable against each of TW NY and TWE 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
Guarantees have been duly authorized by the Guarantors, and, when the Guarantees are
executed and delivered in accordance with the provisions of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid
and binding obligations of the Guarantors entitled to the benefits of the Indenture,
enforceable against the Guarantors in accordance with their 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.
(s) To the knowledge of the Company, Ernst & Young LLP, the Company’s independent
registered public accountant firm, reporting upon certain audited or reviewed financial
statements and schedules included or incorporated by reference in the Disclosure Package
and the Final Prospectus, is an independent registered public accounting firm with respect
to the financial statements covered by the audit or review, in accordance with the
provisions of the Exchange Act and the Act and the respective applicable published rules
and regulations thereunder.
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(t) The consolidated financial statements, as amended, and the related notes of the
Company incorporated by reference in the Disclosure Package and the Final Prospectus,
present fairly in accordance with generally accepted accounting principles the consolidated
financial position of the Company as of the dates indicated and the consolidated results of
operations of the Company and cash flows of the Company for the periods specified. Such
financial statements of the Company 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 Disclosure Package and the Final Prospectus present fairly
in accordance with generally accepted accounting principles the information required to be
stated therein. Any supplementary summary financial information or condensed consolidating
financial information included or incorporated by reference in the Disclosure Package and
the Final Prospectus complies with all applicable accounting requirements and the
applicable rules and regulations of the Commission. Any pro forma financial information
included or incorporated by reference in the Disclosure Package and the Final Prospectus
complies with all applicable accounting requirements and the applicable rules and
regulations of the Commission for such pro forma information. Such pro forma financial
information has been properly compiled on the pro forma basis or bases described therein,
and, in the opinion of the Company, 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.
(u) None of the Company, TW NY or TWE 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.
(v) The Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with GAAP
and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. To the knowledge of the
Company, the Company’s and each of its subsidiaries’ internal controls over financial
reporting are effective and the Company and its subsidiaries are not aware of any material
weakness in their internal control over financial reporting.
(w) The Company and its officers and directors are in compliance in all material
respects with applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith that are
effective and applicable to the Company and its officers and directors at the
Execution Time.
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(x) Except as described in the Disclosure Package and the Final Prospectus, there are
no persons with registration or other similar rights to have any equity or debt securities
registered for sale under the Registration Statement or included in the offering of
Securities contemplated by this Agreement, except for such rights as have been duly waived.
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 of each series set forth opposite such Underwriter’s name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the 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 severally and not jointly and the Company or as provided in Section 8
hereof (such date and time of delivery and payment for the Securities being herein called the
“Closing Date”). Delivery of the 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 payable in immediately available federal funds (unless another form of payment is
specified in Schedule I hereto). Delivery of the Securities shall be made through the facilities
of The Depository Trust Company unless the Representatives shall otherwise instruct.
4. Agreements. The Company and the Guarantors agree with the several Underwriters
that:
(a) Prior to the termination of the offering of the Securities, none of the Company,
TW NY or TWE will file any amendment to the Registration Statement or supplement (including
the Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus unless the
Company or a Guarantor has furnished you a copy for your review a reasonable amount of time
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 documents pursuant to Section
13(a), 14 or 15(d) under the 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, TW NY or TWE will promptly advise the
Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been
filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the
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offering of each series of Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iii) 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, (iv) 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 (v) of the receipt
by the Company, TW NY or TWE 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, TW NY or TWE will use
its reasonable efforts to prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) The Company will prepare a final term sheet, containing solely a description of
the Securities, in the form attached hereto as Schedule III and the Company will file such
term sheet pursuant to Rule 433(d) within the time required by such Rule. Any such final
term sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
(c) If there occurs an event or development as a result of which the Disclosure
Package would include an untrue statement of a material fact or would omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, the Company will notify promptly the
Representatives so that any use of the Disclosure Package may cease until it is amended or
supplemented and will promptly prepare, at its own expense, an amendment or supplement.
(d) If, at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), 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, file a new 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 first sentence of paragraph (a) of this Section 4, an amendment, supplement or new
registration statement which will correct such statement or omission or effect such
compliance.
(e) 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, TW NY and TWE and their respective
subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
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(f) If and to the extent specified in Schedule I, each of the Company, TW NY and TWE
will use its reasonable efforts to cause the Securities to be duly authorized for listing
or trading on a securities exchange or inter-dealer quotation system and to be registered
under the Exchange Act.
(g) The proceeds of the offering of the Securities will be applied as set forth in the
Disclosure Package and the Final Prospectus.
(h) The Company, TW NY and TWE 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 (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), as many copies of any Preliminary Final Prospectus, the Final
Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the
Representatives may reasonably request.
(i) 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), the Base Prospectus, any Preliminary Final Prospectus, the Final
Prospectus and any Issuer Free Writing 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 Blue Sky Survey and any 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(j) and any filing for review of the offering with the Financial Industry
Regulatory Authority (“FINRA”), including filing fees and reasonable fees and disbursements
of counsel for the Underwriters in connection therewith and in connection with any Blue Sky
Survey and any 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.
(j) The Company and the Guarantors will arrange, if necessary, 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
arrange for the determination of the legality of the Securities for purchase by
institutional investors; provided, however, that none of the Company, TW NY
or TWE shall be required to (i) qualify as a foreign
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corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 4(j), (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.
(k) The Company agrees that, unless it obtains the prior written consent of the
Representatives, which consent will not be unreasonably withheld or delayed, and each
Underwriter, severally and not jointly, agrees with the Company that, unless it obtains the
prior written consent of the Company, it has not made and will not make any offer relating
to the Securities that would constitute an Issuer Free Writing Prospectus or that would
otherwise constitute a Free Writing Prospectus, other than the final term sheet prepared
and filed pursuant to Section 4(b) hereto or a Free Writing Prospectus that contains only
the preliminary terms of the Securities or their offering or information that is included
in the Preliminary Final Prospectus or the final term sheet; provided that the prior
written consent of the parties hereto shall be deemed to have been given in respect of the
Issuer Free Writing Prospectuses included in Schedule IV hereto. Any such free writing
prospectus consented to by the Representatives or the Company, as the case may be, is
hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that
(x) it has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as
the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted
Free Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping.
(l) The Company agrees to pay the required Commission filing fees relating to the
Securities within the time required by Rule 456(b)(1).
(m) The Company shall comply with the terms of any lock-up agreement specified in
Schedule I hereto with respect to sales and dispositions of underwritten Securities.
(n) In connection with the offering of the Securities, until the Representatives on
behalf of the Underwriters shall have notified the Company of the completion of the resale
of the Securities, neither the Company nor any of its controlled subsidiaries has or will,
either alone or with one or more other persons, bid for or purchase, for any account in
which it or any of its controlled subsidiaries has a beneficial interest, any Securities or
attempt to induce any person to purchase any Securities; and neither it nor any of its
controlled subsidiaries will make bids or purchases for the purpose of creating actual, or
apparent, active trading in, or of raising the price of, the Securities.
5. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the 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
13
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, TW
NY and TWE 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) The Final Prospectus, and any supplement thereto, have been filed in the manner
and within the time period required by Rule 424(b); the final term sheet contemplated by
Section 4(b) hereto, and any other material required to be filed by the Company pursuant to
Rule 433(d) under the Act, shall have been filed with the Commission within the applicable
time periods prescribed for such filings by Rule 433; the Company has not received from the
Commission any notice pursuant to Rule 401(g)(2) objecting to use of the automatic shelf
registration statement form and at the Closing Date no stop order suspending the
effectiveness of the 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 the
General Counsel to the Company, or an Associate or Deputy General Counsel to the Company
that practices in the area of corporate and securities law, dated the Closing Date in form
and substance reasonably satisfactory to the Representatives.
(c) At the Closing Date, the Company shall have furnished to you the opinion and
statement of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel to the Company and the
Guarantors, each dated the Closing Date in form and substance reasonable satisfactory to
the Representatives.
(d) The Representatives shall have received from counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final
Prospectus (together with any supplement thereto), any Issuer Free Writing Prospectus 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
examined the Registration Statement, the Disclosure Package, the Final Prospectus and any
supplements or amendments to any of the foregoing and this Agreement and that:
(i) the representations and warranties of the Company, TW NY and TWE 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
14
Closing Date and each of the Company, TW NY and TWE 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 or
incorporated by reference in the Disclosure Package and the Final Prospectus, the
Company has made all filings with the Commission and announcements, in either case
required to be made by the Act or the Exchange Act.
(2) TW NY shall have furnished to the Representatives a certificate of TW NY,
signed by any two officers who are Vice Presidents of TW NY, dated the Closing
Date, to the effect that the signers of such certificate have examined the
Registration Statement, the Final Prospectus, the Disclosure Package and any
supplement or amendments thereto and that the representations and warranties of TW
NY 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 TW NY 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) TWE shall have furnished to the Representatives a certificate of TWE,
signed by any two officers, one of whom is an Executive or Senior Vice President of
TWE, dated the Closing Date, to the effect that the signers of such certificate
have examined the Registration Statement, the Final Prospectus, the Disclosure
Package and any supplement or amendments thereto and that the representations and
warranties of TWE 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 TWE 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) The Representatives shall have received from Ernst & Young LLP, independent
registered public accounting firm for the Company at the Execution Time and at the Closing
Date, letters, dated as of the Execution Time and as of the Closing Date as the case may be
in form and substance reasonably satisfactory to the Representatives, confirming that they
are independent auditors with respect to the Company within the meaning of the Act and the
Exchange Act and the respective applicable published rules and regulations thereunder and
containing statements and information of the type ordinarily included in accountant’s
“comfort letters” to underwriters, delivered according to Statement of Auditing Standards
No. 72 (or any successor bulletin), with respect to the audited,
15
unaudited and pro forma financial statements, as applicable, and certain financial
information contained or incorporated by reference in the Registration Statement, the
Preliminary Final Prospectus and the Final Prospectus.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Disclosure Package (exclusive of any amendment or supplement 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 taken as a whole, except as set forth in or contemplated
in the Disclosure Package and the Final Prospectus (exclusive of any amendment or
supplement thereto) 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), the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto).
(h) Subsequent to the Execution Time, (i) there shall not have been any downgrade in
the credit ratings of any of the Company’s, TW NY’s or TWE’s debt securities by Xxxxx’x
Investor Service, Inc. or Standard & Poor’s Ratings Group, and (ii) none of the Company, TW
NY or TWE shall have been placed under special surveillance, with negative implications, by
Xxxxx’x Investor Service, Inc. or Standard & Poor’s Ratings Group.
(i) 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.
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 canceled 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 in writing or by telephone or facsimile 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, TW NY or TWE to perform any agreement
16
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 one 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, TW NY and TWE 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) (i) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement or in any amendment thereof, 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, or (ii) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Final
Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus, the Disclosure Package 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, in the light of the circumstances under which they were made, 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, TW NY or TWE 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 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, TW NY or TWE by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein. This indemnity agreement will be
in addition to any liability which the Company, TW NY or TWE may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless each of the Company, TW
NY and TWE, each of their respective directors, each of their respective officers, and each person
who controls the Company, TW NY and TWE within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company, TW NY and TWE to each Underwriter,
but only with reference to written information relating to such Underwriter furnished to the
Company, TW NY and TWE 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, TW NY and TWE acknowledges that (i) the statements set forth in any Preliminary Final
Prospectus and Final Prospectus in (1) the last paragraph of the cover page regarding the delivery
of the
17
Securities and, under the heading “Underwriting”, (2) the list of Underwriters and their
respective participation in the sale of the Securities, (3) the sentences related to concessions
and reallowances and (4) the paragraph related to stabilization, syndicate covering transactions
and penalty bids and (ii) any information expressly furnished by the Underwriters for inclusion in
any Issuer Free Writing Prospectus appearing on Schedule IV, which Issuer Free Writing Prospectuses
shall not include the final term sheets, the form of which appears in Schedule III, it being
understood and agreed that the only such information furnished by or on behalf of any Underwriter
consists of only [ ].
(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 (including
local 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 (including local counsel) to
represent the indemnified party in an action, the indemnified party shall have the right to employ
separate counsel (including separate 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 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. No
indemnifying party shall, without the prior written consent of the indemnified parties, effect any
settlement 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 any indemnification or
contribution may be sought hereunder (whether
18
or not the indemnified parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent (i) includes an unconditional release of such indemnified
party from all liability arising out of such claim, action, suit or proceeding and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to act, by or on
behalf of any indemnified party. No indemnifying party shall be liable for any settlement or
compromise of, or consent to the entry of judgment with respect to, any claim, action, suit or
proceeding affected, without its consent, which consent shall not be unreasonably withheld or
delayed.
(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,
TW NY, TWE and the Underwriters severally 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, TW NY and TWE 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, TW NY, TWE and the Underwriters severally 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, on the one hand, and of the Underwriters, on the other hand, 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, among other things, whether any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates to information
provided by the Company, TW NY or TWE on the one hand, or the Underwriters on the other, the intent
of the parties and their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. 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, TW NY or
TWE within the meaning of either the Act or the Exchange Act, each officer
19
of the Company, TW NY or TWE and each director of the Company, TW NY or TWE 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 principal amount of the Debt
Securities set forth opposite their names in Schedule II hereto bears to the aggregate principal
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 principal amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate principal 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 and the Company shall determine in order that the required changes in the
Disclosure Package 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 prior to delivery of and payment
for the Securities, if prior to such time (i) trading in the Company’s Class A common stock or any
of the Company’s, TW NY’s or TWE’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 amendment or 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(i), 6 and 7.
20
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company, TW NY or TWE 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, TW NY and TWE, 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 4(i), 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 telefaxed and confirmed
to them, at the address specified in Schedule I hereto; or, if sent to the Company, TW NY or TWE,
will be mailed, delivered or telefaxed to (212) [ ] and confirmed to it at One Time
Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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. Third Party Beneficiaries. This Agreement constitutes an agreement solely among
the parties hereto, and, except as expressly provided in the last sentence of Section 7(d), is not
intended to and shall not confer any rights, remedies, obligations or liabilities, legal or
equitable, on any person other than the parties hereto and their successors or assigns or otherwise
constitute any person a third party beneficiary under or by reason of this Agreement.
14. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York.
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.
16. No Fiduciary Duty. Each of the Company, TW NY and TWE hereby acknowledges that
(a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length
commercial transaction between the Company, TW NY and TWE on the one hand, and the Underwriters and
any affiliate through which any such Underwriter may be acting, on the other, (b) the Underwriters
are acting as principal and not as an agent or fiduciary of the Company, TW NY and TWE and (c) each
of the Company’s, TW NY’s and TWE’s engagement of the Underwriters in connection with the offering
and the process leading up to the offering is as independent contractors and not in any other
capacity. Furthermore, each of the Company, TW NY and TWE agrees that it is solely responsible for
making its own judgments in connection with the offering (irrespective of whether any of the
Underwriters has advised or is currently advising the
21
Company on related or other matters). Each of the Company, TW NY and TWE agrees that it will
not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an
agency, fiduciary or similar duty to the Company, TW NY or TWE, in connection with such transaction
or the process leading thereto.
17. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company, TW NY, TWE and the Underwriters, or any of them,
with respect to the subject matter hereof.
18. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
19. Definitions. The terms which follow, when used in this Agreement, shall have the
meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Applicable
Time” shall mean [ Ÿ ] [p.]m. (Eastern Time) on [___], 2008.
“Base Prospectus” shall mean the prospectus referred to in Xxxxxxx 0, xxxxxxxxx (x),
above contained in the Registration Statement at the Effective Date, as amended and
supplemented to the Closing Date.
“Business Day” shall mean any day on which the New York Stock Exchange is open for
trading.
“Commission” shall mean the U.S. Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, as amended and supplemented
to the Execution Time, (ii) the Preliminary Final Prospectus, (iii) the final term sheet
prepared pursuant to Section 4(b), in the form attached hereto as Schedule III and any
other Issuer Free Writing Prospectuses identified on Schedule IV and (iv) any other Free
Writing Prospectus that each of the parties hereto shall hereafter expressly agree in
writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
22
“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
Base Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus as
defined in Rule 433.
“Preliminary Final Prospectus” shall mean any preliminary prospectus supplement to the
Base Prospectus which describes the Securities and the offering thereof and is used prior
to filing of the Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in Section
1, paragraph (a), above, including incorporated documents, exhibits and financial
statements and any prospectus supplement relating to the Securities that is filed with the
Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant
to Rule 430B, as amended at the Execution Time and, in the event any post-effective
amendment thereto becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 401”, “Rule 405”, “Rule 424”,
“Rule 430B”, “Rule 433”, “Rule 456” and “Rule 457” refer to such rules or regulations under
the Act.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission promulgated thereunder.
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, TW NY, TWE and the several Underwriters.
| Very truly yours, TIME WARNER CABLE INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| TW NY CABLE HOLDING INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| TIME WARNER ENTERTAINMENT COMPANY, L.P. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[Representatives]
| By: | ||||
| Name: | ||||
| Title: | ||||
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
A. Floating Rate Notes Due [l]
Registration Statement: No. 333-[l]
Representatives: [Representatives]
Title: Floating Rate Notes Due [l]
Principal amount: $[l]
CUSIP number: [l]
Interest rate: [l]
Interest accrual date: [l]
Interest payment dates: [l]
Date of maturity: [l]
Denominations: [l]
Purchase price (includes accrued interest or amortization, if any): [l]%
Proceeds to the Company: [l]
Initial public offering price: [l]
Sinking fund provisions: None
Redemption provisions: None
Closing Date, Time and Location: [l] and [l] at the offices of [l]
Lock-up Agreement: [l]
Address for Notice:
Other terms:
|
[Each Underwriter, on behalf of itself and each of its affiliates that participates in the initial distribution of the Debt Securities, severally represents to and agrees with the Company that (i) in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it |
| and each such affiliate have not made and will not make an offer of Debt Securities to the public in that Relevant Member State other than (A) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; (B) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000; and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; (C) to fewer than 100 natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the Representatives; or (D) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of Debt Securities shall require the Company, Guarantors or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Debt Securities to the public” in relation to any Debt Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Debt Securities to be offered so as to enable an investor to decide to purchase or subscribe the Debt Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State; (ii) it and each such affiliate (A) (1) have only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of the debt securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company or the Guarantors; in each case, only to (a) persons who are outside the United Kingdom or (b) investments professionals falling with Article 19(5) of the Financial Services and Xxxxxx Xxx 0000 (Financial Promotion) Order 2005 (the “Order”) or (c) high net worth entities, and other persons to whom it may lawfully be communicated, falling within Article 49(2)(a) to (d) of the Order; and (B) have complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the debt securities in, from or otherwise involving the United Kingdom; (iii) it and each such affiliate have not (A) offered or sold and will not offer or sell in Hong Kong the Debt Securities by means of any document other than (1) in circumstances which do not constitute an offer to the public within the meaning of the Companies Ordinance (Cap. 32, Laws of Hong Kong), or (2) to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder, or (3) in other circumstances which do not result in the document being a “prospectus” within the meaning of the Companies |
| Ordinance (Cap. 32, Laws of Hong Kong); and (B) issued or had in its possession for the purposes of issue, and will not issue or have in its possession for the purposes of issue, whether in Hong Kong or elsewhere, any advertisement, invitation or document relating to the Debt Securities may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the laws of Hong Kong) other than with respect to Debt Securities which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder; (iv) it and each such affiliate have not offered or sold and will not offer or sell any securities, directly or indirectly, in Japan or to, or for the account of, any resident of Japan, except (A) pursuant to an exemption from the registration requirements of the Securities and Exchange Law and (B) in compliance with any other applicable requirements of Japanese law; and (v) it and each such affiliate have not circulated and distributed and will not circulate or distribute the Disclosure Package and the Final Prospectus or any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Debt Securities and have not offered or sold and will not offer or sell the Debt Securities, and have not made and will not make the Debt Securities the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (A) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore (the “SFA”), (B) to a relevant person pursuant to Section 275(1), or any person pursuant to Section 275(1A), and in accordance with the conditions specified in Section 275 of the SFA or (C) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA, in each case subject to compliance with conditions set forth in the SFA. Where the Debt Securities are subscribed or purchased under Section 275 of the SFA by a relevant person which is: (A) a corporation (which is not an accredited investor as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or (B) a trust (where the Trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary is an accredited investor, shares, debentures and units of shares and debentures of that corporation or the beneficiaries’ rights and interest (howsoever described) in that trust shall not be transferred within 6 months after that corporation or that trust has acquired the Debt Securities pursuant to an offer made under Section 275 of the SFA except: (A) to an institutional investor (for corporations, under Section 274 of the SFA) or to a relevant person defined in Section 275(2) of the SFA, or to any person pursuant to an offer that is made on the terms that such shares, debentures |
| and units of shares and debentures of that corporation or such rights and interest in that trust are acquired at a consideration of not less than S$200,000 (or its equivalent in a foreign currency) for each transaction, whether such amount is to be paid for in cash or by exchange of securities or other assets, and further for corporations, in accordance with the conditions specified in Section 275 of the SFA; (B) where no consideration is or will be given for the transfer; or (C) where the transfer is by operation of law.] |
SCHEDULE I
B. [l]% Notes Due [l]
B. [l]% Notes Due [l]
Registration Statement: No. 333-[l]
Representatives: [Representatives]
Title: [l]% NOTES DUE [l]
Principal amount: $[l]
CUSIP number: [l]
Interest rate: [l]%
Interest accrual date: [l]
Interest payment dates: [l]
Date of maturity: [l]
Denominations: [Minimum of $2,000 and integral multiples of $1,000 in excess of $2,000]
Purchase price (includes accrued interest or amortization, if any): [l]%
Proceeds to the Company: $[l]
Initial public offering price: [l]%
Sinking fund provisions: None
Redemption provisions:
|
Optional redemption, at any time in whole or from time to time in part, at our option, at a redemption price equal to the greater of (i) 100% of the principal amount of the [l]% Notes Due [l] to be redeemed, and (ii) the sum of the present values of the Remaining Scheduled Payments, as defined in the Base Prospectus, discounted to the redemption date, on a semi-annual basis, assuming a 360 day year consisting of twelve 30 day months, at the Treasury Rate, as defined in the Base Prospectus, plus [l] basis points, plus, in each case, accrued interest to the date of redemption that has not been paid. | |
Closing Date, Time and Location:
|
[l] at [l] a.m. at the offices of [l] |
Lock-up Agreement:
|
[None] | |
Issuer Free Writing Prospectuses:
|
[The final term sheet prepared and filed by the Company pursuant to Section 4(b)] | |
Address for Notice: |
Other terms:
|
[Each Underwriter, on behalf of itself and each of its affiliates that participates in the initial distribution of the Debt Securities, severally represents to and agrees with the Company that (i) in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it and each such affiliate have not made and will not make an offer of Debt Securities to the public in that Relevant Member State other than (A) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; (B) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000; and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; (C) to fewer than 100 natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the Representatives; or (D) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of Debt Securities shall require the Company, Guarantors or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Debt Securities to the public” in relation to any Debt Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Debt Securities to be offered so as to enable an investor to decide to purchase or subscribe the Debt Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State; (ii) it and each such affiliate (A) (1) have only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of the debt securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company or the Guarantors; in each case, only to (a) persons who are outside the United Kingdom or (b) investments professionals falling with Article 19(5) of the Financial Services and Xxxxxx Xxx 0000 (Financial Promotion) Order 2005 (the |
| “Order”) or (c) high net worth entities, and other persons to whom it may lawfully be communicated, falling within Article 49(2)(a) to (d) of the Order; and (B) have complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the debt securities in, from or otherwise involving the United Kingdom; (iii) it and each such affiliate have not (A) offered or sold and will not offer or sell in Hong Kong the Debt Securities by means of any document other than (1) in circumstances which do not constitute an offer to the public within the meaning of the Companies Ordinance (Cap. 32, Laws of Hong Kong), or (2) to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder, or (3) in other circumstances which do not result in the document being a “prospectus” within the meaning of the Companies Ordinance (Cap. 32, Laws of Hong Kong); and (B) issued or had in its possession for the purposes of issue, and will not issue or have in its possession for the purposes of issue, whether in Hong Kong or elsewhere, any advertisement, invitation or document relating to the Debt Securities may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the laws of Hong Kong) other than with respect to Debt Securities which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder; (iv) it and each such affiliate have not offered or sold and will not offer or sell any securities, directly or indirectly, in Japan or to, or for the account of, any resident of Japan, except (A) pursuant to an exemption from the registration requirements of the Securities and Exchange Law and (B) in compliance with any other applicable requirements of Japanese law; and (v) it and each such affiliate have not circulated and distributed and will not circulate or distribute the Disclosure Package and the Final Prospectus or any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Debt Securities and have not offered or sold and will not offer or sell the Debt Securities, and have not made and will not make the Debt Securities the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (A) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore (the “SFA”), (B) to a relevant person pursuant to Section 275(1), or any person pursuant to Section 275(1A), and in accordance with the conditions specified in Section 275 of the SFA or (C) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA, in each case subject to compliance with conditions set forth in the SFA. Where the Debt Securities are subscribed or purchased under Section 275 of the SFA by a relevant person which is: (A) a corporation |
| (which is not an accredited investor as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or (B) a trust (where the Trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary is an accredited investor, shares, debentures and units of shares and debentures of that corporation or the beneficiaries’ rights and interest (howsoever described) in that trust shall not be transferred within 6 months after that corporation or that trust has acquired the Debt Securities pursuant to an offer made under Section 275 of the SFA except: (A) to an institutional investor (for corporations, under Section 274 of the SFA) or to a relevant person defined in Section 275(2) of the SFA, or to any person pursuant to an offer that is made on the terms that such shares, debentures and units of shares and debentures of that corporation or such rights and interest in that trust are acquired at a consideration of not less than S$200,000 (or its equivalent in a foreign currency) for each transaction, whether such amount is to be paid for in cash or by exchange of securities or other assets, and further for corporations, in accordance with the conditions specified in Section 275 of the SFA; (B) where no consideration is or will be given for the transfer; or (C) where the transfer is by operation of law.] |
SCHEDULE II
A. Floating Rate Notes Due [l]
| Principal Amount | ||||
| Underwriters | to be Purchased | |||
Total |
SCHEDULE II
B. [l]% Notes Due [l]
| Principal Amount | ||
| Underwriters | to be Purchased | |
Total |
SCHEDULE III
FINAL TERM SHEET
Dated:
Issuer:
Guarantor:
Size:
Maturity:
Coupon (Interest Rate):
Yield to Maturity:
Spread to Benchmark Treasury:
Benchmark Treasury:
Benchmark Treasury Price and Yield:
Interest Payment Dates:
Redemption Provisions:
Price to Public:
Settlement Date:
CUSIP Numbers:
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling
toll-free [ ] or you may e-mail a request to [ ].
SCHEDULE IV
Issuer Free Writing Prospectus
