Exhibit 1.1
UNDERWRITING AGREEMENT
[ ]
DC Holdco, Inc.
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the ("Underwriter")), and we understand that DC Holdco,
Inc., a Delaware corporation (the "Company") proposes to issue and sell [Curren-
cy and Principal Amount] aggregate initial offering price of [Full Title of Debt
Securities] (the "Debt Securities").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the principal amount of Debt Securities
set forth below opposite their names at a purchase price of _____% of the
principal amount of Debt Securities [plus accrued interest, if any, from
__________, 199_):(1)]
Principal Amount of
Name Debt Securities
---- -------------------
[Lead Underwriter] $ [ ]
[Insert syndicate list] [ ]
----------------
$
----------------
----------------
____________________
(1) To be added only if transaction does not close flat.
The Underwriters will pay for the Debt Securities upon delivery
thereof at [office] at _____ a.m. (New York time) on ____________, 199__, or at
such other time, not later than 5:00 p.m. (New York time) on ____________,
199__, as shall be designated by the Manager. The time and date of such payment
and delivery are hereinafter referred to as the Closing Date.
The Debt Securities shall have the terms set forth in the Prospectus
dated _________, 1995, the Prospectus Supplement dated _________, 199_, and the
Term Sheet dated ________ 199_ including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: __________ and __________ commencing
____________, 199__ [(interest accrues from
_________, 199_)](2)
Form and Denomination:
Ranking: The Debt Securities will be [senior/senior
subordinated/subordinated] indebtedness of
the Company issued under the [Senior/Senior
Subordinated/Subordinated] Indenture dated as
of ___________, 1995 (the "Indenture"), by
and among the Company, as issuer, The Xxxx
Disney Company ("Disney"), as guarantor, and
______________, as trustee (the "Trustee").
____________________
(2) To be added if transaction does not close flat.
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[Guaranty: The Debt Securities will be guaranteed by
Disney on a senior/senior subordinat-
ed/subordinated basis.(3)]
All provisions contained in the document entitled DC Holdco, Inc.
Underwriting Agreement Standard Provisions (Debt Securities) dated ____________,
1995, a copy of which is attached hereto, are hereby incorporated by reference
in their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein, except that if
any term defined in such document is otherwise defined herein, the definition
set forth herein shall control.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[LEAD UNDERWRITER]
[NAME OF OTHER LEAD MANAGERS],
acting Severally on behalf of themselves and the
several Underwriters named herein
BY: [LEAD UNDERWRITER]
By: ________________________
Name:
Title:
Accepted:
DC HOLDCO, INC.
By:______________________
Name:
Title:
____________________
(3) To be included only if the Debt Securities are to be guaranteed by The Xxxx
Disney Company.
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THE XXXX DISNEY COMPANY(4)
By:______________________
Name:
Title:
____________________
(4) To be included only if the Debt Securities are to be guaranteed by Disney.
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DC HOLDCO, INC.
[THE XXXX DISNEY COMPANY]
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
___________, 1995
From time to time, DC Holdco, Inc., a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as "this Agreement." Terms defined in the Underwriting Agreement
are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement including a prospectus, which among
other things, relates to the Debt Securities and has filed with, or transmitted
for filing to, or shall promptly hereafter file with or transmit for filing to,
the Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Debt Securities, pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"), and/or a term sheet
or an abbreviated term sheet (each a "Term Sheet"), pursuant to Rule 434 under
the Securities Act, specifically relating to the Debt Securities. The Debt
Securities may be guaranteed by The Xxxx Disney Company, a Delaware corporation
("Disney").(1) The term Registration Statement means the registration statement
as amended to the date of this Agreement. The term Basic Prospectus means the
prospectus included in the Registration Statement. The term Prospectus means
the Basic Prospectus together with the Prospectus Supplement and Term Sheet, if
____________________
(1) Each reference to Disney will be included only if the Debt Securities are
guaranteed by Disney.
any. The term preliminary prospectus means a preliminary prospectus supplement
specifically relating to the Debt Securities together with the Basic Prospectus.
As used herein, the term Incorporated Documents shall mean all the documents,
financial statements and schedules incorporated by reference therein or deemed
to be incorporated by reference therein pursuant to Item 12 of Form S-3 under
the 1933 Act, and any reference to any amendment or supplement to the
Registration Statement or the Prospectus shall be deemed to refer to and include
any documents, financial statements and schedules filed by the Company, Disney
[or Capital Cities/ABC, Inc. ("Capital Cities")] with the Commission under the
1934 Act and so incorporated by reference or deemed to be incorporated therein.
Notwithstanding the foregoing, for purposes of this Agreement any prospectus,
prospectus supplement, term sheet or abbreviated term sheet prepared or filed
with respect to an offering pursuant to the Registration Statement of a series
of securities other than the Debt Securities shall not be deemed to have
supplemented the Prospectus.
1. REPRESENTATIONS AND WARRANTIES. The Company [and Disney, jointly and
severally,] represents and warrants to each of the Underwriters that:
(a) The Incorporated Documents, when they became effective or were
filed (or, if an amendment with respect to any such Incorporated Document
was filed or became effective, when such amendment was filed or became
effective) with the Commission, as the case may be, complied in all
material respects with the requirements of the 1934 Act, and any
Incorporated Documents filed subsequent to the date of the Underwriting
Agreement and prior to the Closing Date, will, when they are filed with
the Commission, comply in all material respects with the requirements of
the 1934 Act; no such Incorporated Document, when it became effective or
was filed (or, if an amendment with respect to any such incorporated
Document was filed or became effective, when such amendment was filed or
became effective) with the Commission, contained, and no Incorporated
Document filed subsequent to the date of the Underwriting Agreement and
prior to the termination of the offering of the Debt Securities will
contain, an untrue statement of a material fact or omitted, or will omit,
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(b) The Registration Statement, at the time it became effective,
complied in all material respects with the provisions of the 1933 Act and
the 1933 Act Regulations; as of the date of the Underwriting Agreement,
the
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Registration Statement and the Prospectus, and any supplements or
amendments thereto, complied in all material respects with the provisions
of the 1933 Act and the 1933 Act Regulations; and the Registration
Statement and the Prospectus, and any such supplement or amendment
thereto, at all such times did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; except
that this representation and warranty does not apply to statements or
omissions in the Registration Statement, the Prospectus or any
preliminary prospectus, or any amendment or supplement thereto, made in
reliance upon information furnished to the Company in writing by or on
behalf of the Underwriters expressly for use therein or to those parts of
the Registration Statement which constitute the Trustee's Statement of
Eligibility and Qualification on Form T-1 under the 1939 Act (the "Form
T-1"). There is no contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement which is not described or
filed as required.
(c) This Agreement, the Indenture and the Debt Securities [including
the related guaranty thereof by Disney (the "Guarantees")] have been
duly authorized by the Company [and Disney] and conform in all material
respects to the descriptions thereof in the Prospectus.
(d) The Indenture (assuming due execution and delivery thereof by the
Trustee) is, and the Debt Securities [and the Guarantees] (when executed
by the Company [and Disney, respectively,] and authenticated in
accordance with the Indenture and delivered to and paid for by the
Underwriters) will be, the legal, valid and binding obligations of the
Company [and Disney], enforceable against the Company [and Disney] in
accordance with their respective terms, except as such enforceability may
be limited by (A) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
the enforcement of creditors' rights generally, (B) general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), (C) requirements that a claim with
respect to any Debt Securities denominated other than in United States
dollars (or a judgment denominated other than in United States dollars in
respect of such claim) be converted into United States dollars at a rate
of exchange prevailing on a date determined pursuant to applicable law
and (D) governmental
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authority to limit, delay or prohibit the making of payments outside the
United States or in a foreign currency or composite currency. The Debt
Securities [and the related Guarantees] (when executed by the Company
[and Disney, respectively] and authenticated in accordance with the terms
of the Indenture and delivered to and paid for by the Underwriters) will
be entitled to the benefits of the Indenture (subject to the exceptions
set forth in the preceding sentence).
(e) The Company [and Disney each] is a validly existing corporation
in good standing under the laws of Delaware. The Company [and Disney
each] has full corporate power and authority to own, lease and operate
its properties and to conduct its business as presently conducted and as
described in the Prospectus; and the Company [and Disney each] is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required
whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure to so qualify would not have a
material adverse effect on the consolidated financial condition or
earnings of the Company [Disney] and its subsidiaries, considered as one
enterprise.
(f) Except as contemplated in the Prospectus or reflected therein by
the filing of any amendment or supplement thereto or any Incorporated
Document, since the date of the most recent consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus there has not been any material adverse
change in the consolidated financial condition or earnings of the Company
[Disney] and its subsidiaries, considered as one enterprise.
(g) [Neither] the Company [nor Disney] is [not] in violation of its
Certificate of Incorporation or Bylaws. The execution and delivery of
this Agreement by the Company [and Disney], the issuance and sale of the
Debt Securities [and the related Guarantees] and the performance by the
Company [and Disney] of its [their] obligations under this Agreement and
the Indenture will not conflict with or constitute a breach of or a
default (with the passage of time or otherwise) under (A) the Certificate
of Incorporation or Bylaws of the Company [or Disney], (B) subject to the
Company's [or Disney's, as the case may be,] compliance with any
applicable covenants pertaining to its incurrence of unsecured
indebtedness contained therein, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company [or
Disney] is a party or
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by which it may be bound, or to which any of the properties or assets of
the Company [or Disney] is subject, which breach or default would, singly
or in the aggregate, reasonably be expected to have a material adverse
effect on the consolidated financial condition or earnings of the Company
[Disney] and its subsidiaries, considered as one enterprise, or (C) any
applicable law, administrative regulation or administrative or court
decree. Except for orders, permits and similar authorizations required
under or by the securities or Blue Sky laws of certain jurisdictions, any
securities exchange on which any of the Debt Securities might be listed
or with respect to Debt Securities which are to be indexed or linked to
any foreign currency, composite currency, commodity, equity index or
similar index, no consent, approval, authorization or other order of any
regulatory body, administrative agency or other governmental body is
legally required for the valid issuance and sale of the Debt Securities.
As of the date of the Underwriting Agreement, the delivery of Debt
Securities [and related Guarantees] by the Company [and Disney,
respectively], and the Company [and Disney] by such acceptance or
delivery, as the case may be, shall be deemed to [jointly and severally]
represent and warrant to the Underwriters that, both immediately before
and immediately after giving effect to such acceptance or delivery, the
Company [and Disney] shall be in compliance with the requirements of any
applicable covenants pertaining to its incurrence of unsecured
indebtedness contained in the agreements or instruments referred to in
clause (B) above.
(h) To the best of the Company's [and Disney's] knowledge, the
accountants who have audited and reported upon the financial statements
filed with the Commission as part of the Registration Statement and the
Prospectus are independent accountants as required by the 1933 Act. The
financial statements included in the Registration Statement or Prospectus
or incorporated therein by reference fairly present the consolidated
financial position and results of operations of the Company [Disney] and
its subsidiaries at the respective dates and for the respective periods
to which they apply. Such financial statements have been prepared in
accordance with generally accepted accounting principles consistently
applied, except as set forth in the Registration Statement and
Prospectus.
(i) Each of [ ] (collectively the "Significant Subsidiaries") is
a validly existing corporation in good standing in the state of its
incorporation. Each of the Significant Subsidiaries has full corporate
power and authority to own, lease and operate its properties and to
conduct its
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business as presently conducted and as described in the Prospectus; and
each of the Significant Subsidiaries is duly qualified as a foreign
corporation to transact business and is in good standing in each United
States jurisdiction in which such qualification is required whether by
reason of the ownership or leasing of property or the conduct of
business, except where a failure to so qualify would not have a material
adverse effect on the consolidated financial condition or earnings of the
Company [Disney] and its subsidiaries, considered as one enterprise.
(j) The Company [and Disney, each] has complied with, and is and will
be in compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder
or is exempt therefrom.
2. PUBLIC OFFERING. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Debt Securities as soon after this Agreement has been entered into as in the
Manager's judgment is advisable. The terms of the public offering of the Debt
Securities have been provided by the Manager to the Company and are in all
material respects completely set forth in the Prospectus.
3. PURCHASE AND DELIVERY Except as otherwise provided in this Section 3,
payment for the Debt Securities shall be made by wire transfer, of immediately
available funds, by the Underwriters to the order of the Company, at the time
set forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of the Debt Securities, regis-
tered in such names and in such denominations as the Manager shall request in
writing not less than two full business days prior to the date of delivery, with
any transfer taxes payable in connection with the sale of the Debt Securities to
the Underwriters duly paid.
Delivery on the Closing Date of any Debt Securities that are in bearer
form shall be effected by delivery of a single temporary global Debt Security
without coupons (the "Global Debt Security") evidencing the Debt Securities that
are Debt Securities in bearer form to a common depositary for Xxxxxx Guaranty
Trust Company of New York, Brussels office, as operator of the Euro-clear System
("Euro-clear"), and for Centrale de Livraison de Valeurs Mobilieres S.A.
("CEDEL") for credit to the respective accounts at Euro-clear or CEDEL of each
Underwriter or to such other accounts as such Underwriter may direct. Any
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Global Debt Security shall be delivered to the Manager not later than the
Closing Date, against payment of funds to the Company in the net amount due to
the Company for such Global Debt Security by the method and in the form set
forth herein. The Company shall cause definitive Debt Securities in bearer form
to be prepared and delivered in exchange for such Global Debt Security in such
manner and at such time as may be provided in or pursuant to the Indenture;
provided, however, that the Global Debt Security shall be exchangeable for
definitive Debt Securities in bearer form only on or after the date specified
for such purpose in the Prospectus.
4. CONDITIONS TO CLOSING The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) OPINION OF COUNSEL TO COMPANY. On the Closing Date, the
Underwriters shall have received an opinion from Skadden, Arps, Slate,
Xxxxxxx & Xxxx, counsel to the Company, dated as of the Closing Date and
in form and substance satisfactory to counsel for the Underwriters to the
effect that:
(i) The Company [Disney] and each of the Significant Subsidiaries is
a corporation validly existing and in good standing under the laws of its
state of incorporation.
(ii) The Company [and Disney each] has full corporate power and
corporate authority to enter into and perform its obligations under this
Agreement and the Indenture [and, in the case of the Company,] to borrow
money as contemplated in this Agreement and the Indenture, and to issue,
sell and deliver the Debt Securities.
(iii) This Agreement has been duly authorized, executed and delivered
by the Company [and Disney].
(iv) The Indenture has been duly authorized, executed and delivered by
the Company [and Disney] and (assuming due authorization, execution and
delivery by the Trustee) is a valid and binding agreement of the Company
[and Disney] enforceable against the Company [and Disney] in accordance
with its terms, except that such enforceability may be limited by (A)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally, (B) general principles of equity (regardless of whether
enforcement is
7
sought in a proceeding in equity or at law) and (C) as to Section 6.2 of
the Indenture.
(v) No consent or approval of any United States governmental
authority or other United States person or United States entity is
required in connection with the issuance or sale of the Debt Securities
other than registration thereof under the 1933 Act, qualification of the
Indenture under the 1939 Act, and such registrations or qualifications as
may be necessary under the securities or Blue Sky laws of the various
United States jurisdictions in which the Debt Securities are to be
offered or sold.
(vi) [(a.)] The Debt Securities, when executed by the Company and
authenticated in accordance with the terms of the Indenture (assuming the
due authorization, execution and delivery of the Indenture by the
Trustee) and issued to and paid for by the purchasers thereof, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company enforceable against the Company in accordance
with their respective terms, except that such enforceability may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (B) general principles of equity
(regardless of whether such enforcement is sought in a proceeding in
equity or at law)[; and
(b.) The Guarantees, when executed by Disney and authenticated in
accordance with the terms of the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee)
and issued to and paid for by the purchasers thereof, will be entitled to
the benefits of the Indenture and will be valid and binding obligations
of Disney enforceable against Disney in accordance with their
respective terms, except that such enforceability may be limited by (A)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally and (B) general principles of equity (regardless of whether
such enforcement is sought in a proceeding in equity or at law)].
(vii) The Registration Statement has become effective under the 1933
Act and the Indenture has been qualified under the 1939 Act, and, to the
best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated.
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(viii) The execution and delivery of this Agreement and the Indenture by
the Company [and Disney], the issuance and sale of the Debt Securities
[and Guarantees] and the fulfillment of this Agreement and the Indenture
by the Company [and Disney] will not conflict with or constitute a breach
of or a default (with the passage of time or otherwise) under (A) the
Certificate of Incorporation or Bylaws of the Company [or Disney], (B)
any statute, law or regulation to which the Company [or Disney] or any of
its [respective] properties may be subject or (C) any judgment, decree or
order, known to such counsel, of any court or governmental agency or
authority entered in any proceeding to which the Company [or Disney] was
or is now a party or by which it is bound; provided, that such counsel
may state that (1) the opinion set forth in clause (B) of this paragraph
(viii) is limited to those United States statutes, laws or regulations
currently in effect which, in such counsel's experience, are normally
applicable to transactions of the type contemplated by this Agreement,
and (2) no opinion is expressed as to the securities or Blue Sky laws of
the various jurisdictions in which the Debt Securities are to be offered
and (3) no opinion is expressed with respect to such clause (B) with
respect to Debt Securities [and the related Guarantees] which are
indexed or linked to any foreign currency, composite currency, commodity,
equity index or similar index.
(ix) The Registration Statement, as of the date it became effective,
and the Prospectus, as of the date of the Underwriting Agreement, appear
on their face to be appropriately responsive in all material respects to
the requirements of the 1933 Act, except that in each case such counsel
need not express an opinion as to (i) the Incorporated Documents, (ii)
the financial statements and schedules and other financial data included
or incorporated by reference therein or (iii) the Form T-1.
(x) The statements in the Prospectus under the caption "Description
of the Debt Securities," insofar as they purport to summarize certain
provisions of documents specifically referred to therein, are in all
material respects accurate summaries of such provisions.
In rendering the opinions set forth above, such counsel may state
that (1) with respect to paragraphs (iv) and (vi), such enforcement may
be limited by (i) requirements that a claim with respect to any Debt
Securities denominated other than in United States dollars (or a judgment
denominated other than in United States dollars in respect of such claim)
be
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converted into United States dollars at a rate of exchange prevailing on
a date determined pursuant to applicable law and (ii) governmental
authority to limit, delay or prohibit the making of payments outside the
United States or in foreign currency or composite currency; and (2) with
respect to paragraphs (iv), (v) and (vi), no opinion is expressed thereto
with respect to any Debt Securities that are to be indexed or linked to
any foreign currency or composite currency, commodity, equity index or
similar index.
In addition, such counsel shall state that they have participated
in conferences with officers and other representatives of the Company,
counsel employed by the Company, representatives of the independent
public accountants for the Company, representatives of the Underwriters
and counsel for the Underwriters, at which conferences the contents of
the Registration Statement and Prospectus and related matters were
discussed and, although such counsel is not passing upon, and does not
assume any responsibility for, the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the Prospectus
and have not made any independent check or verification thereof, on the
basis of the foregoing, no facts have come to such counsel's attention
that lead them to believe that either the Registration Statement
(excluding the Incorporated Documents) at the time such Registration
Statement became effective (which, for the purposes of this paragraph,
shall have the meaning set forth in Rule 158(c) of the 1933 Act
Regulations) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or the Prospectus (excluding
the Incorporated Documents) as of the date of the Underwriting Agreement
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that
such counsel need express no opinion with respect to (i) the Incorporated
Documents, (ii) the financial statements, schedules and other financial
data included or incorporated by reference in the Registration Statement
or the Prospectus or (iii) the Form T-1.
(b) OPINION OF COUNSEL EMPLOYED BY COMPANY. On the Closing Date, the
Underwriters shall have received an opinion from Xxxxx X. Xxxxxxxx,
Senior Vice President-Assistant General Counsel or from other counsel
employed by the Company (provided that such counsel is a more
10
senior officer of the Company), dated as of the date hereof and in form
and substance satisfactory to counsel for the Underwriters, to the effect
that:
(i) Except as set forth in the Prospectus (including the Incorporated
Documents), there is not pending or, to the best of such counsel's
knowledge, after reasonable inquiry, threatened any action, suit or
proceeding against the Company [Disney] or any of its subsidiaries before
or by any court or governmental agency or body, which is likely (to the
extent not covered by insurance) to have a material adverse effect on the
consolidated financial condition or earnings of the Company [Disney] and
its subsidiaries, considered as one enterprise.
(ii) To the best of such counsel's knowledge, after reasonable
inquiry, there is no contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement which is not described or
filed as required.
(iii) To the best of such counsel's knowledge, after reasonable
inquiry, [neither] the Company [nor Disney] is [not] in violation of its
Certificate of Incorporation or Bylaws.
(iv) To the best of such counsel's knowledge, after reasonable
inquiry, (x) the execution and delivery, and (y) the performance, of this
Agreement and the Indenture will not conflict with or constitute a breach
of, or default (with the passage of time or otherwise) under, any
material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company [or Disney] is a party or by which
it may be bound, or to which any of the property or assets of the Company
[Disney] or any of its subsidiaries is subject.
(v) The Incorporated Documents, as of the date of the Underwriting
Agreement, complied as to form in all material respects with the
requirements of the 1933 Act, except that in each case such counsel need
not express an opinion as to the financial statements and schedules and
other financial data included or incorporated by reference therein.
In addition, such counsel shall state that nothing has come to
such counsel's attention that leads him to believe that either the
Registration Statement (including the Incorporated Documents) at the time
such Regis-
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tration Statement became effective (which, for the purposes of this
paragraph, shall have the meaning set forth in Rule 158(c) of the 1933
Act Regulations) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or the
Prospectus (including the Incorporated Documents) as of the date of the
Underwriting Agreement contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, except that such counsel need
express no opinion with respect to the financial statements, schedules
and other financial data included or incorporated by reference in the
Registration Statement or Prospectus or with respect to the Form T-1.
(c) OPINION OF UNDERWRITERS' COUNSEL. On the Closing Date, the
Underwriters shall have received an opinion from [ ],
counsel to the Underwriters, dated as of the Closing Date and in form and
substance satisfactory to the Underwriters.
(d) OFFICER'S CERTIFICATE. [a] On the Closing Date the Underwriters
shall have received a certificate signed by an officer of the Company,
dated the Closing Date, to the effect that (i) the representations and
warranties of the Company contained in Section 1. hereof are true and
correct in all material respects with the same force and effect as though
expressly made at and as of the date of such certificate, (ii) the
Company has complied with all agreements and satisfied all conditions
required by this Agreement or the Indenture on its part to be performed
or satisfied at or prior to the date of such certificate and (iii) no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been initiated or,
to the best of such officer's knowledge, threatened by the Commission.
The Officers Certificate shall further state that except as contemplated
in the Prospectus or reflected therein by the filing of any amendment or
supplement thereto or any Incorporated Document, at the Date, there shall
not have been, since the date of the most recent consolidated financial
statements of the Company included or incorporated by reference in the
Prospectus, any material adverse change in the consolidated financial
condition or earnings of the Company and its subsidiaries, considered as
one enterprise [;
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[b] On the Closing Date the Underwriters shall have received a
certificate signed by an officer of Disney, dated the Closing Date, to
the effect that (i) the representations and warranties of Disney
contained in Section 1(a) hereof (other than Section 1(a)(vii)) are true
and correct in all material respects with the same force and effect as
though expressly made at and as of the date of such certificate and (ii)
Disney has complied with all agreements and satisfied all conditions
required by this Agreement or the Indenture on its part to be performed
or satisfied at or prior to the date of such certificate. The Officer's
Certificate shall further state that except as contemplated in the
Prospectus or reflected therein by the filing of any amendment or
supplement thereto or any Incorporated Document, at the Closing Date,
there shall not have been, since the date of the most recent consolidated
financial statements of Disney included or incorporated by reference in
the Prospectus, any material adverse change in the consolidated financial
condition or earnings of Disney and its subsidiaries, considered as one
enterprise].
(e) COMFORT LETTER. On the Closing Date, the Underwriters shall have
received a letter from the Company's [Disney's] [and Capital Cities']
independent certified public accountants, dated as of the Closing Date
and in form and substance reasonably satisfactory to the Underwriters.
(f) OTHER DOCUMENTS. On the Closing Date counsel to the Underwriters
shall have been furnished with such documents and opinions as such
counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Debt Securities as herein
contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations and warranties or
the fulfillment of any of the conditions herein contained.
If any condition specified in this Section 4 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by any of the Underwriters (as to itself only), except that the covenants set
forth in Section 5(f) hereof, the indemnity and contribution agreement set
forth in Sections 6, 7, 8 and 9 hereof and the provisions of Section 13 hereof
shall remain in effect.
5. COVENANTS OF THE COMPANY [AND DISNEY]. In further consideration of the
agreements of the Underwriters contained herein, the Company [and Disney,
jointly and severally,] covenants as follows:
13
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the Manager
promptly of (i)the effectiveness of any post-effective amendment to the
Registration Statement (other than a post-effective amendment relating
solely to an offering of securities other than the Debt Securities),
(ii) the transmittal to the Commission for filing of any supplement to
the Prospectus (other than a Pricing Supplement or a supplement relating
solely to an offering of debt securities other than the Debt Securities),
(iii) the receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus (other than any comments
relating solely to an offering of securities other than the Debt Secu-
rities), (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
or for additional information (other than any such request relating
solely to an offering of securities other than the Debt Securities) and
(v) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. The Company will make every reasonable
effort to prevent the issuance of any such stop order and, if any such
stop order is issued, to obtain the lifting thereof at the earliest
possible time unless the Company shall, in its sole discretion, determine
that it is not in its best interest to do so.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. At or prior to the filing
thereof, the Company will give the Manager notice of its intention to
file any additional registration statement with respect to the
registration of additional Debt Securities to be covered by this
Agreement, any amendment to the Registration Statement or any amendment
or supplement to the Prospectus (other than a Pricing Supplement or an
amendment or supplement relating solely to an offering of securities
other than the Debt Securities), whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish the
Underwriters with copies of any such amendment or supplement or other
documents promptly after the filing thereof.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company will deliver to the Underwriters one signed and as many conformed
copies of the Registration Statement (as originally filed) and of each
amendment thereto (including the Incorporated Documents and any exhibits
filed therewith or incorporated by reference therein) as the Manager may
reasonably request. The Company will furnish to the Underwriter as many
copies of the Prospectus (as amended or supple-
14
mented) as the Manager shall reasonably request so long as the
Underwriters are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Debt Securities.
(d) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. So long as the
Underwriters are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Debt Securities, if any
event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Company, after consultation
with counsel for the Underwriters, to further amend or supplement the
Prospectus in order that the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in light of the
circumstances existing at the time it is delivered to a purchaser, or if
it shall be necessary, in the opinion of counsel for the Company, to
amend or supplement the Registration Statement or the Prospectus in order
to comply with the requirements of the 1933 Act or the 1933 Act Regula-
tions, prompt notice shall be given, and confirmed in writing, to the
Manager, and the Company will prepare and file as soon as practicable an
amendment or supplement to the Prospectus so that the Prospectus, as
amended or supplemented, will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein not misleading in light of the circumstances
existing at the time it is delivered to the Underwriters.
(e) COMPLIANCE WITH 1934 ACT; ACCOUNTANTS' CONSENTS. [(x)] The
Company will (i) comply, in a timely manner, with all applicable
requirements under the 1934 Act relating to the filing with the
Commission of the Company's reports pursuant to Section 13(a), 13(c) or
15(d) of the 1934 Act and, if then applicable, of the Company's proxy
statements pursuant to Section 14(a) of the 1934 Act and (ii) use its
best efforts to obtain the written consent of the Company's independent
accountants as to the incorporation by reference in the Registration
Statement of the audited financial statements reported on by them and
contained in the Company's annual reports on Form 10-K under the 1934
Act[; and
(y) Disney will (i) comply, in a timely manner, with all
applicable requirements under the 1934 Act relating to the filing with
the Commission of Disney's reports pursuant to Section 13(a), 13(c) or
15(d) of the 1934 Act and, if then applicable, of Disney's proxy
statements pursuant to Section 14(a) of the 1934 Act and (ii) use its
best efforts to obtain the
15
written consent of Disney's independent accountants as to the
incorporation by reference in the Registration Statement of the audited
financial statements reported on by them and contained in Disney's
annual reports on Form 10-K under the 1934 Act.]
(f) EARNINGS STATEMENTS. The Company [and Disney] will make
generally available to its security holders, in each case as soon as
practicable but in any event not later than 15 months after the Closing
Date, a consolidated earnings statement (which need not be audited)
covering the twelve-month period beginning after the latest of (i) the
effective date of the Registration Statement, (ii) the effective date of
the most recent post-effective amendment to the Registration Statement to
become effective, (iii) the Company's [Disney's] most recent annual
report on Form 10-K filed with the Commission prior to the Closing Date,
which earnings statement will satisfy the provisions of Section 11(a) of
the 1933 Act. The Company and Disney may elect to rely upon Rule 158
under the 1933 Act and may elect to make such earnings statement
available more frequently than once in any period of twelve months.
(g) BLUE SKY QUALIFICATIONS. The Company will endeavor, in
cooperation with the Underwriters, to qualify the Debt Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions of the United States as the Manager may reasonably
designate, and will maintain such qualifications in effect for as long as
may be required for the distribution of the Debt Securities; PROVIDED,
HOWEVER, that the Company will promptly notify the Manager of any
suspension or termination of any such qualifications, and PROVIDED,
FURTHER, that the Company shall not be obligated to register or qualify
as a foreign corporation or take any action which would subject it to
general service of process in any jurisdiction where it is not now so
subject.
6. INDEMNIFICATION OF THE UNDERWRITERS. The Company [and Disney, jointly
and severally,] agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the 1933 Act as follows:
(a) against any and all loss, liability, claim, damage and expense
whatsoever (including, subject to the limitations set forth in subsection
(c) below, the reasonable fees and disbursements of counsel chosen by the
Underwriters), as incurred, insofar as such loss, liability, claim,
damage
16
or expense arises out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or arises out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading;
(b) against any and all loss, liability, claim, damage and expense
whatsoever (including, subject to the limitations set forth in subsection
(c) below, the reasonable fees and disbursements of counsel chosen by the
Underwriters), as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever insofar as such loss, liability, claim, damage or expense
arises out of any such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is effected with the
written consent of the Company [and Disney]; and
(c) against any and all expense whatsoever (including, subject to the
limitations set forth in subsection (C) below, the reasonable fees and
disbursements of counsel chosen by the Underwriters), as incurred,
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever, based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission;
PROVIDED, HOWEVER, that this indemnity shall not apply to any loss,
liability, claim, damage or expense (A) to the extent arising out of or
based upon any untrue statement or omission or alleged untrue statement
or omission made in reliance upon the Form T-1 under the 1939 Act filed
as an exhibit to the Registration Statement; or (B) to the extent arising
out of any untrue statement or omission or alleged untrue statement or
omission in the Prospectus if such untrue statement or alleged untrue
statement or omission or alleged omission is corrected in all material
respects in an amendment or supplement to the Prospectus and if, having
previously been furnished by or on behalf of the Company with copies of
the Prospectus, as so amended or supplemented, such Underwriter
thereafter failed to
17
deliver such Prospectus, as so amended or supplemented, prior to or
concurrently with the sale of the Debt Securities to the person asserting
such loss, liability, claim, damage or expense who purchased such
Debt Securities which are the subject thereof from such Underwriter; or
(C) as to which such Underwriter may be required to indemnify the Company
pursuant to the provisions of subsection (b) of this Section 6.
7. INDEMNIFICATION OF THE COMPANY [AND DISNEY]. Each Underwriter agrees to
indemnify and hold harmless the Company, [Disney] its respective directors, each
of its respective officers who signed the Registration Statement, and each
person, if any, who controls the Company [or Disney] within the meaning of
Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of Section 6
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement or
the Prospectus in reliance upon and in conformity with written information
furnished to the Company [or Disney] by such Underwriter expressly for use in
the Registration Statement or the Prospectus.
8. GENERAL. In case any action, suit or proceeding (including any
governmental or regulatory investigation or proceeding) shall be brought against
any Underwriter or any person controlling such Underwriter, based upon the
Registration Statement or the Prospectus and with respect to which indemnity may
be sought against the Company [and Disney] pursuant to this Section 8, such
Underwriter or controlling person shall promptly notify the Company [and Disney]
in writing, and the Company [or Disney] shall assume the defense thereof,
including the employment of counsel (such counsel to be reasonably acceptable to
such Underwriter) and payment of all expenses. Any such Underwriter or any such
controlling person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such separate counsel shall be at the expense of such
Underwriter or such controlling person unless (A) the employment of such counsel
shall have been specifically authorized in writing by the Company [and Disney],
(B) the Company [and Disney] shall have failed to assume the defense and employ
counsel or (C) the named parties to any such action, suit or proceeding
(including any impleaded parties) shall include both such Underwriter or such
controlling person and the Company [or Disney], and such Underwriter or such
controlling person shall have been advised by counsel that there may be one or
more legal defenses available to it which are different from, or additional to,
those available to the Company [or Disney] (in which case, if such Underwriter
18
or such controlling person notifies the Company [and Disney] in writing that it
elects to employ separate counsel at the expense of the Company [and Disney],
[neither] the Company [nor Disney] shall [not] have the right to assume the
defense of such action, suit or proceeding on behalf of such Underwriter or such
controlling person, it being understood, however, that the Company [and Disney]
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all such Underwriters and such controlling persons, which firm
shall be designated in writing by the Manager on behalf of all of such
Underwriters and such controlling persons).
In case any action, suit or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought against the Company [,
Disney], any of the Company's [or Disney's] directors or officers, or any person
controlling the Company [or Disney], with respect to which indemnity may be
sought against any Underwriter pursuant to this Section 8, such Underwriter
shall have the rights and duties given to the Company [and Disney] by this
Section 8, and the Company [, Disney], the Company's [and Disney's] directors
and officers and any such controlling person shall have the rights and duties
given to the Underwriters by this Section 8.
9. CONTRIBUTION. In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Sections 6 and 7
hereof is for any reason held to be unenforceable with respect to the
indemnified parties although applicable in accordance with its terms, the
Company [, Disney] and each Underwriter [, on the other hand,] shall contribute
to the aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Company and the
Underwriters, as incurred, in such proportion as is appropriate to reflect the
relative benefits received by the Company [and Disney] on the one hand and each
of the Underwriters participating in the offering that gave rise to such losses,
liabilities, claims, damages and expenses on the other hand from the offering of
such Debt Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required pursuant to Section 6(c) hereof or
pursuant to the last sentence of this Section 8, then the Company [, Disney] and
each Underwriter shall contribute to such aggregate losses, liabilities, claims,
damages and expenses incurred by the Company and the Underwriters, as incurred,
in such propor-
19
tion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company [and Disney] on the one hand and each Underwriter
on the other in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company [and Disney] on the one hand and each Underwriter on the other hand in
connection with the offering of such Debt Securities shall be deemed to be in
the same proportion as the total net proceeds from the sale of such Debt
Securities by such Underwriter received by the Company (before deducting
expenses) bear to the total commissions or other compensation or remuneration
received by such Underwriter in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company [(or Disney)] or
such Underwriter and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
If there is more than one Underwriter in respect of a proceeding, each
Underwriter's obligation to contribute pursuant to this Section 9 shall be
several and not joint, and shall be in the proportion that the principal amount
of the Debt Securities that are the subject of such proceeding and that were
offered and sold through such Underwriter bears to the notwithstanding the
provisions of this Section 9, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Debt
Securities purchased by or through it were sold exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section
9, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company [or Disney], each officer of the
Company [or Disney] who sign within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as the Company [or Disney, as the
case may be]. Any party entitled to contribution pursuant to the first sentence
of this Section 9 will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section 9,
notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought, from any other obliga-
20
tion it or they may have otherwise than under this Section 9; PROVIDED, HOWEVER,
that such notice need not be given if such party entitled to contribution
hereunder has previously given notice pursuant to Section 8 hereof with respect
to the same action, suit or proceeding.
10. TERMINATION. The Underwriters may terminate the Underwriting Agreement
immediately upon notice to the Company, at any time prior to the Closing Date if
(i) there has been, since the date of the Underwriting Agreement or since the
respective dates as of which information is given in the Registration Statement,
any material adverse change in the consolidated financial condition or earnings
of the Company [Disney] and its subsidiaries, considered as one enterprise, (ii)
there has occurred any material adverse change in the financial markets in the
United States or any outbreak or escalation of hostilities or other calamity or
crisis, the effect of which is such as to make it, in the reasonable judgment of
the Manager, impracticable to market the Debt Securities or to enforce contracts
for the sale of the Debt Securities, (iii) if trading in any securities of the
Company [or Disney] has been suspended (other than pursuant to a request by the
Company [or Disney] with respect to an announcement by the Company [or Disney]
of certain information not constituting a material adverse change, since the
date of the Underwriting Agreement or the respective date as of which
information is given in the Registration Statement, in the consolidated
financial condition or earnings of the Company [Disney] and its subsidiaries,
considered as one enterprise), the effect of which is such as to make it, in the
reasonable judgment of such Underwriter, impracticable to market the Debt
Securities or to enforce contracts for the sale of the Debt Securities, (iv) if
trading generally on the New York Stock Exchange has been suspended, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices for
securities shall have been required, by such exchange or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either Federal or New York authorities or if a banking
moratorium has been declared by the relevant authorities in the country or
countries of origin of any foreign currency or currencies in which the Debt
Securities are denominated or payable or (v) after the date of the Underwriting
Agreement, the rating assigned by any nationally recognized securities rating
agency to any debt securities of the Company as of the date of such Underwriting
Agreement shall have been lowered or any such rating agency shall have publicly
announced that it has placed any debt securities of the Company on what is
commonly termed a "watch list" with negative implications.
21
11. DEFAULTING UNDERWRITERS. If on the Closing Date any one or more of the
Underwriters shall fail or refuse to purchase Debt Securities that it has or
they have agreed to purchase on such date, and the aggregate amount of Debt
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate amount of the
Debt Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the amount of Debt Securities set
forth opposite their respective names above bears to the aggregate amount of
Debt Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Debt Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date. If on the Closing Date
any Underwriter or Underwriters shall fail or refuse to purchase Debt Securities
and the aggregate amount of Debt Securities with respect to which such default
occurs is more than one-tenth of the aggregate amount of Debt Securities to be
purchased on such date, and arrangements satisfactory to the Manager and the
Company for the purchase of such Debt Securities are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case either the
Manager or the Company shall have the right to postpone the Closing Date but in
no event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
12. MISCELLANEOUS. The Underwriting Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK WITH RESPECT TO CONTRACTS MADE IN AND TO BE PERFORMED WHOLLY WITHIN
THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF.
14. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
22
