Exhibit 10.1
THE NEW YORK TIMES COMPANY
$300,000,000
MEDIUM-TERM NOTES
Due more than 9 Months from Date of Issue
U.S. DISTRIBUTION AGREEMENT
September 24, 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
CHASE SECURITIES INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
Dear Sirs:
The New York Times Company, a New York corporation (the "COMPANY"),
confirms its agreement with each of you with respect to the issue and sale from
time to time by the Company of up to $300,000,000 (or the equivalent thereof in
one or more foreign currencies or composite currencies) aggregate initial public
offering price of its medium-term notes due more than 9 months from date of
issue (the "NOTES"). The Notes will be issued under an Indenture dated as of
March 29, 1995 as supplemented by the First Supplemental Indenture dated as of
August 21, 1998 (the Indenture as so supplemented the "INDENTURE") between the
Company and The Chase Manhattan Bank, as Trustee (the "TRUSTEE"), and will have
the maturities, interest rates, redemption provisions, if any, and other terms
as set forth in supplements to the Basic Prospectus referred to below.
The Company hereby appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇
▇▇▇▇▇▇▇") and ▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (individually,
an "AGENT" and collectively, the "AGENTS") as its agents, subject to Section 11,
for the purpose of soliciting and receiving offers to purchase Notes from the
Company by others and, on the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, each Agent
agrees to use reasonable efforts to solicit and receive offers to purchase Notes
upon terms acceptable to the Company at such times and in such amounts as the
Company shall from time to time specify. The
Company may appoint one or more new agents in accordance with the provisions of
Section 11. In addition, any Agent may also purchase Notes as principal
pursuant to the terms of a terms agreement relating to such sale (a "TERMS
AGREEMENT") in accordance with the provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement (File No. 333-62023), including a
prospectus, relating to the Notes. Such registration statement, including the
exhibits thereto, as amended at the Commencement Date (as hereinafter defined),
is hereinafter referred to as the "REGISTRATION STATEMENT." The Company
proposes to file with the Commission from time to time, pursuant to Rule 424
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), supplements
to the prospectus included in the Registration Statement that will describe
certain terms of the Notes. The prospectus in the form in which it appears in
the Registration Statement is hereinafter referred to as the "BASIC PROSPECTUS."
The term "PROSPECTUS" means the Basic Prospectus together with the prospectus
supplement or supplements (each a "PROSPECTUS SUPPLEMENT") specifically relating
to Notes, as filed with, or transmitted for filing to, the Commission pursuant
to Rule 424. As used herein, the terms "BASIC PROSPECTUS" and "PROSPECTUS"
shall include in each case the documents, if any, incorporated by reference
therein. The terms "SUPPLEMENT" and "AMENDMENT" as used herein shall include
all documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT") and "AMEND" and "SUPPLEMENT" shall include the filing of such
documents with the Commission.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to and agrees with each Agent as of the Commencement Date, as of each date on
which an Agent solicits offers to purchase Notes, as of each date on which the
Company accepts an offer to purchase Notes (including any purchase by an Agent
pursuant to a Terms Agreement), as of each date the Company issues and delivers
Notes and as of each date the Registration Statement or the Basic Prospectus is
amended or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as amended
or supplemented to each such date):
(a) The Registration Statement has been filed with the Commission
and has become effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and, to the knowledge of the Company,
no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so
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filed in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not contain
and each such part, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that (A) the
representations and warranties set forth in this paragraph do not apply (1)
to statements or omissions in the Registration Statement or the Prospectus
based upon information relating to an Agent furnished to the Company in
writing by such Agent expressly for use therein or (2) to that part of the
Registration Statement that constitutes the Statement of Eligibility (Form
T-1) under the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT"), of the Trustee and (B) the representations and warranties
set forth in clauses 1 (b)(iii) and 1 (b)(iv) above, when made as of the
Commencement Date or as of any date on which an Agent solicits offers to
purchase Notes or on which the Company accepts an offer to purchase Notes,
shall be deemed not to cover information concerning an offering of
particular Notes to the extent such information will be set forth in a
supplement to the Basic Prospectus.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of New York, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of
its business requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(d) Each subsidiary of the Company that in accordance with
generally accepted accounting principles is consolidated with the Company
in the Company's consolidated financial statements AND that generated 7% or
more of the revenues or held 7% or more of the assets, of the Company and
its consolidated subsidiaries for or at the end of the most recently
completed fiscal year of the Company for which an Annual Report on Form
10-K or proxy statement of the Company containing audited financial results
has been filed with the Commission (each, a "Significant Subsidiary") is
set forth on Schedule 1 attached hereto and has been duly incorporated
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and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority to
own its properties and conduct its business as described in the Prospectus;
and each Significant Subsidiary of the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of
its business requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the Company and its
subsidiaries taken as a whole; all of the issued and outstanding capital
stock of each Significant Subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and the
capital stock of each Significant Subsidiary owned by the Company, directly
or through subsidiaries, is owned free from liens and encumbrances.
(e) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(f) The Notes have been duly authorized; and when the Notes are
authenticated by the Trustee and delivered and paid for pursuant to any
applicable Terms Agreement on the Closing Date (as defined below), such
Notes will have been duly executed, authenticated, issued and delivered and
will conform in all material respects to the description thereof contained
in the Prospectus, and such Notes will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(g) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement and any
applicable Terms Agreement in connection with the issuance and sale of the
Notes by the Company, except such as have been obtained and made under the
Act and the Trust Indenture Act and such as may be required under state (or
foreign) securities laws and except such which the failure to obtain or
make would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(h) The execution, delivery and performance of the Indenture, this
Agreement and any applicable Terms Agreement and the issuance and sale of
the Notes and compliance with the terms and provisions thereof will not
result in a breach or
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violation of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over
the Company or any Significant Subsidiary or any of their properties, or
any agreement or instrument to which the Company or any Significant
Subsidiary is a party or by which the Company or any Significant Subsidiary
is bound or to which any of the properties of the Company or any
Significant Subsidiary is subject, or the charter or by-laws of the Company
or any Significant Subsidiary except (i) that any rights to indemnity and
contribution herein may be limited by federal and state securities laws and
public policy considerations and (ii) for such breaches, violations and
defaults as would not have a material adverse effect on the Company and its
subsidiaries taken as a whole; and the Company has full corporate power and
authority to authorize, issue and sell the Notes as contemplated by this
Agreement and any applicable Terms Agreement.
(i) Each of this Agreement and any applicable Terms Agreement has
been duly authorized, executed and delivered by the Company.
(j) Except as disclosed in the Prospectus, the Company and its
Significant Subsidiaries have good title to all real properties and all
other properties and assets owned by them that are material to the Company
and its subsidiaries taken as a whole, in each case free from liens and
encumbrances that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them; and except as
disclosed in the Prospectus, the Company and its Significant Subsidiaries
hold any leased real or personal property that are material to the Company
and its subsidiaries taken as a whole, under valid and enforceable leases
with no exceptions that would materially interfere with the use made or to
be made thereof by them.
(k) The Company and the Significant Subsidiaries possess all
certificates, authorities or permits issued by appropriate governmental
agencies or bodies that are material to the Company and its subsidiaries
taken as a whole and have not received any notice of proceedings relating
to the revocation or modification of any such certificate, authority or
permit that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(l) To the knowledge of the Company, except as disclosed in the
Prospectus, no labor dispute with the employees of the Company or any
subsidiary exists or is imminent that might have a material adverse effect
on the Company and its subsidiaries taken as a whole.
(m) The Company and the Significant Subsidiaries own, possess,
license or can acquire on reasonable terms, all trademarks, trade names and
other rights to
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inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
that are material to the Company and its subsidiaries taken as a whole and
have not received any notice of infringement of or conflict with asserted
rights of others with respect to any of such intellectual property rights
that, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse effect on
the Company and its subsidiaries taken as a whole.
(n) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), or to the knowledge of the Company is
liable for any off-site disposal or contamination pursuant to any
environmental laws, in each case which violations, contaminations or
liabilities would individually or in the aggregate have a material adverse
effect on the Company and its subsidiaries taken as a whole; and the
Company is not aware of any pending investigation which might lead to such
a claim.
(o) Except as disclosed in the Prospectus (and except for pending
or threatened libel suits in which adverse determinations are unlikely),
there are no pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective properties
that, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse effect on
the Company and its subsidiaries taken as a whole, or would materially and
adversely affect the ability of the Company to perform its obligations
under the Indenture, the Terms Agreement (including the provisions of this
Agreement), or which are otherwise materially adverse in the context of the
sale of the Notes; and, to the Company's knowledge, no such actions, suits
or proceedings are threatened or contemplated.
(p) The financial statements included in the Registration Statement
and Prospectus present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries as of the dates
shown and their results of operations and cash flows for the periods shown,
subject in the case of interim financial statements to normal recurring
year-end adjustments, and, except as otherwise disclosed in the Prospectus,
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied on a
consistent basis; and any schedules included in the Registration Statement
present fairly the information required to be stated therein.
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(q) Except as disclosed in the Prospectus, since the date of the
latest financial statements included in the Prospectus, there has been no
material adverse change, nor any development or event reasonably likely to
result in a prospective material adverse change, in the financial
condition, business, properties or results of operations of the Company and
its subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the Prospectus and except for regular quarterly cash
dividends and the stock dividend effective June 17, 1998 in connection with
the Company's 2-for-1 stock split, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(r) The Company is not and, after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940.
Notwithstanding the foregoing, the representations and warranties set forth
in clauses l(b)(iii) and l(b)(iv) and Sections l(e) (except as to due
authorization of the Notes) and 1(g), when made as of the Commencement Date, or
as of any date on which an Agent solicits offers to purchase Notes, with respect
to any Notes the payments of principal or interest on which will be determined
by reference to one or more currency exchange rates, commodity prices, equity
indices or other factors, shall be deemed not to address the application of the
Commodity Exchange Act, as amended, or the rules, regulations or interpretations
of the Commodity Futures Trading Commission.
2. Solicitations as Agent; Purchases as Principal.
(a) SOLICITATIONS AS AGENT. In connection with an Agent's actions
as agent hereunder, such Agent agrees to use reasonable efforts to solicit
offers to purchase Notes upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently,
the solicitation of offers to purchase Notes. Upon receipt of at least one
business day's prior notice from the Company, the Agents will forthwith
suspend solicitations of offers to purchase Notes from the Company until
such time as the Company has advised the Agents that such solicitation may
be resumed. While such solicitation is suspended, the Company shall not be
required to deliver any certificates, opinions or letters in accordance
with Sections 5(a), 5(b) and 5(c); PROVIDED, HOWEVER, that if the
Registration Statement or Prospectus is amended or supplemented during the
period of suspension (other than by an amendment or supplement providing
solely for a change in the interest rates, redemption provisions,
amortization schedules or maturities offered on the Notes or for a change
the Agents deem to be immaterial), no Agent shall be required to resume
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soliciting offers to purchase Notes until the Company has delivered such
certificates, opinions and letters as such Agent may request.
The Company agrees to pay to each Agent, as consideration for the sale
of each Note resulting from a solicitation made or an offer to purchase
received by such Agent, a commission in the form of a discount from the
purchase price of such Note equal to the percentage set forth below of the
purchase price of such Note:
COMMISSION
TERM RATE
----------------------------------------------- --------------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to less than 30 years .750%
From 30 years and beyond To be negotiated
Each Agent shall communicate to the Company, orally or in writing,
each offer to purchase Notes received by such Agent as agent that in its
judgment should be considered by the Company. The Company shall have the
sole right to accept offers to purchase Notes and may reject any offer in
whole or in part. Each Agent shall have the right to reject any offer to
purchase Notes that it considers to be unacceptable, and any such rejection
shall not be deemed a breach of its agreements contained herein. The
procedural details relating to the issue and delivery of Notes sold by the
Agents as agents and the payment therefor shall be as set forth in the
Administrative Procedures (as hereinafter defined).
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(b) PURCHASES AS PRINCIPAL. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this Agreement. In
connection with each such sale, the Company will enter into a Terms
Agreement that will provide for the sale of such Notes to and the purchase
thereof by such Agent. Each Terms Agreement will take the form of either
(i) a written agreement between such Agent and the Company, which may be
substantially in the form of Exhibit A hereto (a "WRITTEN TERMS
AGREEMENT"), or (ii) an oral agreement between such Agent and the Company
confirmed in writing by such Agent to the Company in the form of Exhibit A
hereto.
An Agent's commitment to purchase Notes pursuant to a Terms Agreement
shall be deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to the
terms and conditions herein set forth. Each Terms Agreement shall specify
the principal amount of Notes to be purchased by such Agent pursuant
thereto, the maturity date of such Notes, the price to be paid to the
Company for such Notes, the interest rate and interest rate formula, if
any, applicable to such Notes and any other terms of such Notes. Each such
Terms Agreement may also specify any requirements for officers'
certificates, opinions of counsel and letters from the independent public
accountants of the Company pursuant to Section 4 hereof. A Terms Agreement
may also specify certain provisions relating to the reoffering of such
Notes by such Agent.
Each Terms Agreement shall specify the time and place of delivery of
and payment for such Notes. Unless otherwise specified in a Terms
Agreement, the procedural details relating to the issue and delivery of
Notes purchased by an Agent as principal and the payment therefor shall be
as set forth in the Administrative Procedures. Each date of delivery of
and payment for Notes to be purchased by an Agent pursuant to a Terms
Agreement is referred to herein as a "SETTLEMENT DATE."
Unless otherwise specified in a Terms Agreement, if you are purchasing
Notes as principal you may resell such Notes to other dealers. Any such
sales may be at a discount, which shall not exceed the amount set forth in
the Prospectus Supplement relating to such Notes.
(c) ADMINISTRATIVE PROCEDURES. The Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (attached
hereto as Exhibit B) (the "ADMINISTRATIVE PROCEDURES"), as amended from
time to time. The Administrative Procedures may be amended only by written
agreement of the Company and the Agents.
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(d) DELIVERY. The documents required to be delivered by Section 4
of this Agreement as a condition precedent to each Agent's obligation to
begin soliciting offers to purchase Notes as an agent of the Company shall
be delivered at the office of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, counsel for the
Agents, not later than 5:00 p.m., New York City time, on the date hereof,
or at such other time and/or place as the Agents and the Company may agree
upon in writing, but in no event later than the day prior to the earlier of
(i) the date on which the Agents begin soliciting offers to purchase Notes
and (ii) the first date on which the Company accepts any offer by an Agent
to purchase Notes pursuant to a Terms Agreement. The date of delivery of
such documents is referred to herein as the "COMMENCEMENT DATE."
(e) OBLIGATIONS SEVERAL. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
3. AGREEMENTS. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes pursuant
to this Agreement or any Terms Agreement, the Company will not file any
Prospectus Supplement relating to the Notes or any amendment to the
Registration Statement unless the Company has previously furnished to the
Agents copies thereof for their review and will not file any such proposed
supplement or amendment to which the Agents reasonably object; PROVIDED,
HOWEVER, that (i) the foregoing requirement shall not apply to any of the
Company's periodic filings with the Commission required to be filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies
of which filings the Company will cause to be delivered to the Agents
promptly after being transmitted for filing with the Commission and (ii)
any Prospectus Supplement that merely sets forth the terms or a description
of particular Notes (each a "PRICING SUPPLEMENT") shall only be reviewed
and approved by the Agent or Agents offering such Notes. Subject to the
foregoing sentence, the Company will promptly cause each Prospectus
Supplement to be filed with or transmitted for filing to the Commission in
accordance with Rule 424(b) under the Securities Act. The Company will
promptly advise the Agents (i) of the filing of any amendment or supplement
to the Basic Prospectus (except that notice of the filing of an amendment
or supplement to the Basic Prospectus that merely sets forth the terms or a
description of particular Notes shall only be given to the Agent or Agents
offering such Notes), (ii) of the filing and effectiveness of any amendment
to the Registration Statement, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement
to the Basic Prospectus or for any additional information, (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 of any
notification with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the
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initiation or threatening of any proceeding for such purpose. The Company
will use its reasonable efforts to prevent the issuance of any such stop
order or notice of suspension of qualification and, if issued, to obtain as
soon as possible the withdrawal thereof. If the Basic Prospectus is
amended or supplemented as a result of the filing under the Exchange Act of
any document incorporated by reference in the Prospectus, no Agent shall be
obligated to solicit offers to purchase Notes so long as it is not
reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or
condition exists as a result of which the Prospectus, as then amended or
supplemented, would include an 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 when the Prospectus, as then amended or
supplemented, is delivered to a purchaser, not misleading, or if, in the
opinion of the Agents or in the opinion of the Company, it is necessary at
any time to amend or supplement the Prospectus, as then amended or
supplemented, to comply with applicable law, the Company will immediately
notify the Agents by telephone (with confirmation in writing) to suspend
solicitation of offers to purchase Notes and, if so notified by the
Company, the Agents shall forthwith suspend such solicitation and cease
using the Prospectus, as then amended or supplemented. If the Company
shall decide to amend or supplement the Registration Statement or
Prospectus, as then amended or supplemented, it shall so advise the Agents
promptly by telephone (with confirmation in writing) and, at its expense,
shall prepare and, subject to Section 3(a), cause to be filed promptly with
the Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, satisfactory in all respects
to the Agents, that will correct such statement or omission or effect such
compliance and will supply such amended or supplemented Prospectus to the
Agents in such quantities as they may reasonably request. If any
documents, certificates, opinions and letters furnished to the Agents
pursuant to Sections 3(f), 5(a), 5(b) and 5(c) in connection with the
preparation and filing of such amendment or supplement are satisfactory in
all respects to the Agents, upon the filing with the Commission of such
amendment or supplement to the Prospectus or upon the effectiveness of an
amendment to the Registration Statement, the Agents will resume the
solicitation of offers to purchase Notes hereunder. Notwithstanding any
other provision of this paragraph, for a period of 45 days after the
Settlement Date of any purchase of Notes by an Agent as principal, if any
event described above in this paragraph occurs, the Company will, at its
own expense, forthwith prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, satisfactory in all respects
to such Agent, will supply such amended or supplemented Prospectus to such
Agent in such quantities as it may reasonably request and shall furnish to
such Agent pursuant to Sections 3(f), 5(a), 5(b) and 5(c) such documents,
certificates,
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opinions and letters as it may request in connection with the preparation
and filing of such amendment or supplement.
(c) The Company will make generally available to its security
holders and to the Agents as soon as practicable earning statements that
satisfy the provisions of Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder covering twelve-month periods
beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in Rule 158
under the Securities Act) of the Registration Statement with respect to
each sale of Notes. If such fiscal quarter is the last fiscal quarter of
the Company's fiscal year, such earning statement shall be made available
not later than 90 days after the close of the period covered thereby and in
all other cases shall be made available not later than 45 days after the
close of the period covered thereby.
(d) The Company will furnish to each Agent, without charge, a
conformed copy of the Registration Statement, including exhibits and all
amendments thereto, and as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as such Agent may reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Agents shall reasonably request and to maintain such qualifications for as
long as the Agents shall reasonably request.
(f) The Company shall furnish to the Agents such relevant documents
and certificates of officers of the Company relating to the business,
operations and affairs of the Company, the Registration Statement, the
Basic Prospectus, any amendments or supplements thereto, the Indenture, the
Notes, this Agreement, the Administrative Procedures, any Terms Agreement
and the performance by the Company of its obligations hereunder or
thereunder as the Agents may from time to time reasonably request.
(g) The Company shall notify the Agents promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement and
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any Terms Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the
Notes, (iii) the fees and disbursements of the Company's counsel and
accountants and of the Trustee and its counsel, (iv) the qualification of
the Notes under securities or Blue Sky laws in accordance with the
provisions of Section 3(e), including filing fees and the fees and
disbursements of counsel for the Agents in connection therewith and in
connection with the preparation of any Blue Sky or Legal Investment
Memoranda, (v) the printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and all
amendments thereto and of the Prospectus and any amendments or supplements
thereto, (vi) the printing and delivery to the Agents of copies of any Blue
Sky or Legal Investment Memoranda, (vii) any fees charged by rating
agencies for the rating of the Notes, (viii) any expenses incurred by the
Company in connection with a "road show" presentation to potential
investors and (ix) the fees and disbursements of counsel for the Agents
incurred in connection with the offering and sale of the Notes, including
any opinions to be rendered by such counsel hereunder, and (x) any
reasonable out-of-pocket expenses incurred by the Agents; PROVIDED that any
advertising expenses incurred by the Agents shall have been approved by the
Company.
(i) During the period beginning the date of any Terms Agreement and
continuing to and including the Settlement Date with respect to such Terms
Agreement, the Company will not, without the prior written consent of each
Agent that is party to such Terms Agreement, offer, sell, contract to sell
or otherwise dispose of any debt securities of the Company or warrants to
purchase debt securities of the Company substantially similar to such Notes
(other than (i) the Notes that are to be sold pursuant to such Terms
Agreement, (ii) Notes previously agreed to be sold by the Company and (iii)
commercial paper issued in the ordinary course of business), except as may
otherwise be provided in such Terms Agreement.
4. CONDITIONS OF THE OBLIGATIONS OF THE AGENTS. Each Agent's obligation
to solicit offers to purchase Notes as agent of the Company, each Agent's
obligation to purchase Notes pursuant to any Terms Agreement and the obligation
of any other purchaser to purchase Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of an Agent's obligation to
solicit offers to purchase Notes, at the time of such solicitation, and, in the
case of an Agent's or any other purchaser's obligation to purchase Notes, at the
time the Company accepts the offer to purchase such Notes and at the time of
issuance and delivery) and (in each case) to the following additional conditions
precedent when and as specified:
-13-
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus, as
amended or supplemented at the time of such solicitation or at the time
such offer to purchase was made, that, in the judgment of the relevant
Agent, is material and adverse and that makes it, in the judgment of such
Agent, impracticable to market the Notes on the terms and in the manner
contemplated by the Prospectus, as so amended or supplemented;
(ii) there shall not have occurred any (A) suspension or material
limitation of trading generally on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade,
(B) suspension of trading of any securities of the Company on any exchange
or in any over-the-counter market, (C) declaration of a general moratorium
on commercial banking activities in New York by either Federal or New York
State authorities or (D) any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment
of the relevant Agent, is material and adverse and, in the case of any of
the events described in clauses 4(a)(ii)(A) through 4(a)(ii)(D), such
event, singly or together with any other such event, makes it, in the
judgment of such Agent, impracticable to market the Notes on the terms and
in the manner contemplated by the Prospectus, as amended or supplemented at
the time of such solicitation or at the time such offer to purchase was
made; and
(iii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by
any "nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in Section 4(a)(i),
4(a)(ii) or 4(a)(iii) above, as disclosed to the relevant Agent in
writing by the Company prior to such solicitation or, in the case of a
purchase of Notes, as disclosed to the relevant Agent before the offer
to purchase such Notes was made or (B) unless in each case described
in Section 4(a)(ii) above, the relevant event shall have occurred and
been known to the relevant Agent before such solicitation or, in the
case of a purchase of Notes, before the offer to purchase such Notes
was made.
-14-
(b) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents shall
have received:
(i) The opinion, dated as of such date, of ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, outside counsel for the Company, to the effect that:
(A) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of New York, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus as then
amended or supplemented;
(B) The Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust
Indenture Act; the Notes have been duly authorized; the Indenture
constitutes and, when executed, authenticated, issued and delivered in
the manner provided in the Indenture and paid for by the purchasers
thereof on the date of such opinion, the Notes will constitute, valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles; and the Notes, when so issued and
delivered and sold will conform in all material respects to the
description thereof contained in the Prospectus;
(C) To such counsel's knowledge, no consent, approval,
authorization or order of, or filing with, any governmental agency or
body or any court is required for the consummation of the transactions
contemplated by any applicable Written Terms Agreement (including the
provisions of this Agreement) in connection with the issuance or sale
of the Notes by the Company, except such as have been obtained and
made under the Act and the Trust Indenture Act and such as may be
required under state or foreign securities laws (with respect to which
counsel need express no opinion);
(D) The execution, delivery and performance of the
Indenture and any applicable Written Terms Agreement (including the
provisions of this Agreement) and the issuance and sale of the Notes
and compliance with the terms and provisions thereof will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, any applicable statute, or any rule,
regulation or order known to such counsel of any governmental agency
or body or any court having jurisdiction over the Company or any
Significant Subsidiary or any material portion of their properties
(except that any rights to indemnity and contribution under this
Agreement may be limited by federal and state securities laws and
public policy concerns), or any agreement identified by the Agents
-15-
(which shall be listed on a schedule annexed to such opinion), or the
charter or by-laws of the Company, and the Company has full corporate
power and authority to authorize, issue and sell the Notes as
contemplated by any applicable Written Terms Agreement;
(E) The Registration Statement has become effective under
the Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement or
any part thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the Act.
The registration statement relating to the Registered Securities, as
of its effective date, the Registration Statement and the Prospectus,
as of the date of any applicable Written Terms Agreement (except, in
each case, for financial statements and schedules as to which counsel
need express no opinion), complied as to form in all material respects
with the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations;
(F) While such counsel is not passing upon and does not
assume responsibility for, and shall not be deemed to have
independently verified the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus
(except the statements made under the caption "Description of Debt
Securities" and "Description of Notes" insofar as they relate to legal
matters), nothing has come to the attention of such counsel in the
course of participating with officers and representatives of the
Company in the preparation of the Registration Statement that would
lead such counsel to believe that, insofar as relevant to the offering
of the Notes, any part of the Registration Statement, when such part
became effective, as of the date of any applicable Written Terms
Agreement or as of the date of such opinion (except for financial
statements and schedules and other financial and statistical data
contained therein, as to which counsel need express no opinion and
excluding the documents incorporated by reference into the
Registration Statement, as to which counsel need express no opinion),
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, as of
the date of any Written Terms Agreement or as of the date of such
opinion (except for financial statements and schedules and other
financial and statistical data contained therein, as to which counsel
need express no opinion and excluding the documents incorporated by
reference into the Registration Statement, as to which counsel need
express no opinion), contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the
statements
-16-
therein, in the light of the circumstances under which they were made,
not misleading;
(G) The Distribution Agreement and any applicable Written
Terms Agreement have been duly authorized, executed and delivered by
the Company; and
(H) Such counsel is of the opinion ascribed to it in the
Prospectus, as then amended or supplemented under the caption "United
States Taxation."
Such opinion may state (i) that it is limited to the laws of New York
and the federal laws of the United States and (ii) that as to matters
of fact it has been rendered in reliance on certificates of the
Company, officers thereof and public official.
(ii) The opinion, dated as of such date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇,
Esq., Senior Vice President and General Counsel of the Company, to the
effect that:
(A) Each Significant Subsidiary has been duly incorporated
and is an existing corporation in good standing under the laws of the
state of its incorporation, with corporate power and authority to own
its properties and conduct its business as described in the Prospectus
as then amended or supplemented;
(B) The execution, delivery and performance of the
Indenture, Distribution Agreement, and any applicable Written Terms
Agreement and the issuance and sale of the Notes and compliance with
the terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any material agreement or instrument known to such
counsel to which the Company or any Significant Subsidiary is a party
or by which the Company or any Significant Subsidiary is bound or to
which any material portion of the properties of the Company or any
Significant Subsidiary is subject, or the charter or by-laws of any
Significant Subsidiary, except for such breaches, violations and
defaults as would not have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(C) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus, as then amended or supplemented, and are not so described
or of any statutes, regulations, contracts or other documents that are
-17-
required to be described in the Registration Statement or the
Prospectus, as then amended or supplemented, or to be filed or
incorporated by reference as exhibits to such Registration Statement
that are not described, filed or incorporated as required;
(D) the Company is not and, after giving effect to the
offering and sale of the Notes and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of
1940, as amended;
(E) While such counsel is not passing upon and does not
assume responsibility for, and shall not be deemed to have
independently verified the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus,
nothing has come to the attention of counsel in the course of
participating with officers and representatives of the Company in the
preparation of the Registration Statement that would lead counsel to
believe that, insofar as relevant to the offering of the Notes, any
part of the Registration Statement, when such part became effective,
as of the date of any applicable Terms Agreement or as of the date of
such opinion (except for financial statements and schedules and other
financial data contained therein, as to which such counsel need
express no opinion), contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of the date of any applicable Terms Agreement or as of
the date of such opinion (except for financial statements and
schedules and other financial data contained therein, as to which such
counsel need express no opinion), contained any untrue statement of a
material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and
(F) Such counsel (1) is of the opinion that each document,
if any, filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus, as then amended or supplemented (except
for financial statements and schedules included therein as to which
such counsel need not express any opinion) complied when so filed as
to form in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, and (2)
is of the opinion that the Registration Statement and Prospectus, as
then amended or supplemented, if applicable (except for financial
statements and schedules included therein as to which such counsel
need not express any opinion) comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder; PROVIDED that in the case of
an opinion delivered on the Commencement Date or pursuant to Section
5(b), the
-18-
opinion and belief set forth in clause 4(b)(ii)(F)(2) above shall be
deemed not to cover information concerning an offering of particular
Notes to the extent such information will be set forth in a supplement
to the Basic Prospectus.
Such opinion may state that (i) it is limited to the law of New York,
except to the extent that matters contained in paragraph (i) pertain
to the laws of jurisdiction other than New York (with respect to which
counsel may rely, and the opinion may so state, on opinions of local
counsel and/or certificates of public officials), and (ii) that as to
matters of fact it has been rendered in reliance on certificates of
the Company, officers thereof, and public officials.
(iii) The opinion, dated as of such date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Agents, such opinion, dated the Closing Date, with respect
to the incorporation of the Company, the validity of the Notes, the
Registration Statement, the Prospectus and other related matters as the
Representative may require, and the Company shall have furnished to such
counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
Notwithstanding the foregoing, the opinions described in Sections
4(b)(i)(B) (except as to due authorization of the Notes) and 4(b)(i)(D) and
clauses 4(b)(ii)(D)(1), 4(b)(i)(E) and 4(b)(ii)(C), when contained in an
opinion delivered on the Commencement Date or pursuant to Section 5(b),
shall be deemed not to address the application of the Commodity Exchange
Act, as amended, or the rules, regulations or interpretations of the
Commodity Futures Trading Commission to Notes the payments of principal or
interest on which will be determined by reference to one or more currency
exchange rates, commodity prices, equity indices or other factors.
The opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP described in Section
4(b)(i) above shall be rendered to the Agents at the request of the Company
and shall so state therein.
(c) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents shall
have received a certificate, dated the Commencement Date or such Settlement
Date, as the case may be, and signed by an executive officer of the
Company, to the effect set forth in Sections 1(g) and 4(a)(iii) and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of such date in all material
respects and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied on
or before such date.
-19-
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, Deloitte & Touche LLP
independent public accountants, shall have furnished to the relevant Agents
a letter or letters, dated the Commencement Date or such Settlement Date,
as the case may be, in form and substance satisfactory to such Agents
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus, as then amended or
supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate
further information, certificates and documents as they may reasonably
request.
5. ADDITIONAL AGREEMENTS OF THE COMPANY. (a) Each time the Registration
Statement or Prospectus is amended or supplemented (other than by a Pricing
Supplement or an amendment or supplement providing for a change the Agents deem
to be immaterial), the Company will deliver or cause to be delivered forthwith
to each Agent a certificate signed by an executive officer of the Company, dated
the date of such amendment or supplement, as the case may be, in form reasonably
satisfactory to the Agents, of the same tenor as the certificate referred to in
Section 4(c) relating to the Registration Statement or the Prospectus as amended
or supplemented to the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a), the Company will furnish or cause to be furnished forthwith
to each Agent a written opinion of independent counsel for the Company,
and/or of the General Counsel of the Company. Any such opinions shall be
dated the date of such amendment or supplement, as the case may be, shall
be in a form satisfactory to the Agents and shall be of the same tenor as
the opinion referred to in Sections 4(b)(i) and 4(b)(ii), respectively, but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such opinion. In lieu
of such opinions, each counsel last furnishing such an opinion to an Agent
may furnish to each Agent a letter to the effect that such Agent may rely
on such last opinion to the same extent as though it were dated the date of
such letter (except that statements in such last opinion will be deemed to
relate to the Registration Statement and the Prospectus as amended or
supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Prospectus,
-20-
the Company shall cause its independent public accountants forthwith to
furnish each Agent with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to the Agents, of the
same tenor as the letter referred to in Section 4(d), with regard to the
amended or supplemental financial information included or incorporated by
reference in the Registration Statement or the Prospectus as amended or
supplemented to the date of such letter.
6. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls any Agent within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim, and will reimburse such Agent or person for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
any such action or claim as such expenses are incurred) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to such Agent
furnished to the Company in writing by such Agent expressly for use therein.
(b) Each Agent agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Agent, but only with reference to information relating to
such Agent furnished to the Company in writing by such Agent expressly for
use in the Registration Statement or the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either Section 6(a) or 6(b) above, such
person (the "INDEMNIFIED PARTY") shall promptly notify the person against
whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have
-21-
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (iii) the indemnifying
party shall have failed to appoint counsel reasonably satisfactory to
indemnified party. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in
writing by the Agents that are indemnified parties, in the case of
parties indemnified pursuant to Section 6(a) above, and by the Company,
in the case of parties indemnified pursuant to Section 6(b) above. The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior
to the date of such settlement. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in Section 6(a)
or 6(b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and each
Agent on the other hand from the offering of such Notes or (ii) if the
allocation provided by clause
-22-
6(d)(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
6(d)(i) above but also the relative fault of the Company on the one hand
and each Agent on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and each Agent on the other hand in
connection with the offering of such Notes shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of
such Notes (before deducting expenses) received by the Company bear to the
total discounts and commissions received by each Agent in respect thereof.
The relative fault of the Company on the one hand and each Agent on the
other hand 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 by such Agent and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Each Agent's obligation to contribute pursuant to
this Section 6 shall be several in the proportion that the principal amount
of the Notes the sale of which by or through such Agent gave rise to such
losses, claims, damages or liabilities bears to the aggregate principal
amount of the Notes the sale of which by or through any Agent gave rise to
such losses, claims, damages or liabilities, and not joint.
(e) The Company and the Agents agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined BY PRO
RATA allocation (even if the Agents were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 6(d). The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in Section 6(d) shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes
referred to in Section 6(d) that were offered and sold to the public
through such Agent exceeds the amount of any damages that such Agent has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in
equity.
-23-
(f) The indemnity and contribution provisions contained in this
Section 6, representations, warranties and other statements of the Company,
its officers and the Agents set forth in or made pursuant to this Agreement
or any Terms Agreement will remain in full force and effect regardless of
(i) any termination of this Agreement or any such Terms Agreement, (ii) any
investigation made by or on behalf of any Agent or any person controlling
any Agent or by or on behalf of the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for
any of the Notes.
7. POSITION OF THE AGENTS. In acting under this Agreement and in
connection with the sale of any Notes by the Company (other than Notes sold to
an Agent pursuant to a Terms Agreement), each Agent is acting solely as agent of
the Company and does not assume any obligation towards or relationship of agency
or trust with any purchaser of Notes. An Agent shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the Company, but
such Agent shall not have any liability to the Company in the event any such
purchase is not consummated for any reason. If the Company shall default in its
obligations to deliver Notes to a purchaser whose offer it has accepted, the
Company shall hold the relevant Agent harmless against any loss, claim, damage
or liability arising from or as a result of such default and shall, in
particular, pay to such Agent the commission it would have received had such
sale been consummated.
8. TERMINATION. This Agreement may be terminated at any time by the
Company or, as to any Agent, by the Company or such Agent upon the giving of
written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto accrued
or incurred prior to such termination. The termination of this Agreement shall
not require termination of any Terms Agreement, and the termination of any such
Terms Agreement shall not require termination of this Agreement. If this
Agreement is terminated, the provisions of the third paragraph of Section 2(a),
Section 2(e), the last sentence of Section 3(b) and Sections 3(c), 3(h), 6, 7,
9, 10 and 13 shall survive; PROVIDED that if at the time of termination an offer
to purchase Notes has been accepted by the Company but the time of delivery to
the purchaser or its agent of such Notes has not occurred, the provisions of
Sections 1, 2(b), 2(c), 3(a), 3(b), 3(d), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall
also survive until such delivery has been made.
9. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, will be mailed,
delivered or telefaxed and confirmed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: Manager, Credit Department (telefax number:
212-761-0780), with a copy to ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
Attention: Managing Director, Debt Syndicate, if sent to Chase Securities Inc.,
will be mailed, delivered or telefaxed and confirmed to Chase Securities Inc. at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Medium Term Note Desk
(telefax number: (▇▇▇) ▇▇▇-▇▇▇▇), if sent to
-24-
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., will be mailed, delivered or telefaxed and confirmed
to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. at ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Medium Term Note Desk (telefax number: (▇▇▇) ▇▇▇-▇▇▇▇) or, if sent to the
Company, will be mailed, delivered or telefaxed and confirmed to the Company at
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇, Treasurer
and ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Assistant Treasurer (telefax number (▇▇▇) ▇▇▇-▇▇▇▇) with
a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, Esq., Senior Vice President and General Counsel
(telefax number (▇▇▇) ▇▇▇-▇▇▇▇).
10. SUCCESSORS. This Agreement and any Terms Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
11. AMENDMENTS; APPOINTMENT OF NEW AGENTS. (a) This Agreement may be
amended or supplemented if, but only if, such amendment or supplement is in
writing and is signed by the Company and each Agent; PROVIDED that the Company
may from time to time appoint new agents in accordance with sub-sections (b) and
(c) of this Section 11.
(b) The Company may appoint one or more new agents for the duration of
this Agreement or, with regard to a particular tranche of Notes, one or
more new agents for the purposes of that tranche, in either case upon the
terms of this Agreement, PROVIDED that:
(i) any new agent shall have first delivered to the Company an Agent
Accession Letter substantially in the form set out in Part I or III (as
appropriate) of Exhibit C hereto or executed a Terms Agreement
substantially in the form set out in Exhibit A hereto; and
(ii) the Company shall have delivered to such new agent a Confirmation
Letter substantially in the form set out in Part II or IV (as appropriate)
of Exhibit C hereto or executed a Terms Agreement substantially in the form
set out in Exhibit A hereto.
Upon appointment, such new agent shall, subject to the terms of the relevant
Agent Accession Letter and the relevant Confirmation Letter, become a party to
this Agreement, vested with all authority, rights, powers, duties and
obligations of an Agent as if originally named as an Agent hereunder; PROVIDED
that except in the case of the appointment of a new agent for the duration of
the Program, following the issue of the Notes of the relevant tranche, the
relevant new agent shall have no further such authority, rights, powers, duties
or obligations except such as may have accrued prior to or in connection with
the issue of the relevant Notes.
-25-
(c) The Company shall at least [seven] days prior to such appointment
promptly notify the other Agents of any proposed appointment of a new agent
for the duration of the Program and shall promptly supply to such parties a
copy of any Agent Accession Letter and Confirmation Letter. No such notice
shall be required to be given in the case of an appointment of a new agent
for a particular issue of Notes.
12. COUNTERPARTS. This Agreement may be signed in two or more
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. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY
CHOICE-OF-LAW RULES THEREOF WHICH MIGHT APPLY THE LAWS OF ANY OTHER
JURISDICTION.
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.
-26-
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 between the
Company and you.
Very truly yours,
THE NEW YORK TIMES COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
CHASE SECURITIES INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
-27-
SCHEDULE 1
SIGNIFICANT SUBSIDIARIES
1. Affiliated Publications, Inc., a Massachusetts corporation
2. Globe Newspaper Company, a Massachusetts corporation
3. The New York Times Sales, Inc., a Delaware Corporation
4. NYT Capital, Inc. a Delaware corporation
-28-
EXHIBIT A
THE NEW YORK TIMES COMPANY
MEDIUM-TERM NOTES
TERMS AGREEMENT
___________, 199_
THE NEW YORK TIMES COMPANY
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
RE: DISTRIBUTION AGREEMENT DATED ___________, 1998 (THE
"DISTRIBUTION AGREEMENT")
We agree to purchase your Medium-Term Notes having the following terms:
We agree to purchase, [severally and not jointly,]* the principal amount of
Notes set forth below opposite our names:
PRINCIPAL AMOUNT
NAME OF NOTES
------------------------------------------------------------- ----------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
[Insert syndicate list](*)
----------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . $
================
---------------------
* Delete if the transaction will not be syndicated.
The Notes shall have the following terms:
ALL NOTES: FIXED RATE NOTES: FLOATING RATE NOTES:
Principal amount: Interest Rate: Base rate:
Purchase price: Applicability of
modified payment
upon acceleration: Index maturity:
Price to public: If yes, state issue price: Spread:
Settlement date and Amortization schedule: Spread multiplier:
time:
Place of delivery: Alternate rate event
spread:
Specified currency: Initial interest rate:
Maturity date: Initial interest reset
date:
Initial accrual period Interest reset dates:
OID:
Total amount of OID: Interest reset period:
Original yield to Maximum interest rate:
maturity:
Optional repayment Minimum interest rate:
date(s):
Optional redemption Interest payment period:
date(s):
Initial redemption date: Interest payment dates:
Initial redemption Calculation agent:
percentage:
Annual redemption
percentage decrease:
Other terms:
A-2
The provisions of Sections 1, 2(b), 2(c), 3 through 6 and 9 through 13 of
the Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if set
forth in full herein.
[If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on such
date, and the aggregate amount of Notes which such defaulting Agent or Agents
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Notes to be purchased on such date, the other Agents
shall be obligated severally in the proportions that the amount of Notes set
forth opposite their respective names above bears to the aggregate amount of
Notes set forth opposite the names of all such non-defaulting Agents, or in such
other proportions as may specify, to purchase the Notes which
such defaulting Agent or Agents agreed but failed or refused to purchase on such
date; PROVIDED that in no event shall the amount of Notes that any Agent has
agreed to purchase pursuant to this Agreement be increased pursuant to this
paragraph by an amount in excess of one-ninth of such amount of Notes without
the written consent of such Agent. If on the Settlement Date any Agent or
Agents shall fail or refuse to purchase Notes and the aggregate amount of Notes
with respect to which such default occurs is more than one-tenth of the
aggregate amount of Notes to be purchased on such date, and arrangements
satisfactory to and the Company for the purchase of such
Notes are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Agent or the
Company. In any such case either _______________ or the Company shall have the
right to postpone the Settlement 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 Agent
from liability in respect of any default of such Agent under this Agreement.](*)
This Agreement is also subject to termination on the terms incorporated by
reference herein. If this Agreement is terminated, the provisions of Sections
3(h), 6, 9, 10 and 13 of the Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the Distribution Agreement will be required:
___________________
[NAME OF RELEVANT AGENT(S)]
---------------------
* Delete if the transaction will not be syndicated.
A-3
By:
-------------------------------
Name:
Title:
Accepted:
THE NEW YORK TIMES COMPANY
By:
-------------------------------
Name:
Title:
A-4
EXHIBIT B
THE NEW YORK TIMES COMPANY
MEDIUM-TERM NOTES
ADMINISTRATIVE PROCEDURES
_________________________________
Explained below are the administrative procedures and specific terms of
the offering of Medium-Term Notes (the "NOTES"), on a continuous basis by The
New York Times Company (the "COMPANY") pursuant to the Distribution
Agreement, dated as of September 24, 1998 (the "DISTRIBUTION AGREEMENT")
among the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Chase Securities
Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (the "AGENTS"). The Notes will be issued
under an Indenture dated as of March 29, 1995 between the Company and The
Chase Manhattan Bank (formerly known as Chemical Bank)("Chase"), as trustee
(the "TRUSTEE"), as supplemented by an Indenture Supplement, dated as of
August 21, 1998 (such Indenture, as supplemented, the "INDENTURE"). In the
Distribution Agreement, the Agents have agreed to use reasonable efforts to
solicit purchases of the Notes, and the administrative procedures explained
below will govern the issuance and settlement of any Notes sold through an
Agent, as agent of the Company. An Agent, as principal, may also purchase
Notes for its own account, and if requested by such Agent, the Company and
such Agent will enter into a terms agreement (a "TERMS AGREEMENT"), as
contemplated by the Distribution Agreement. The administrative procedures
explained below will govern the issuance and settlement of any Notes
purchased by an Agent, as principal, unless otherwise specified in the
applicable Terms Agreement.
Chase will be the Trustee, Calculation Agent, Authenticating Agent
and Paying Agent for the Notes and will perform the duties specified herein.
Each Note will be represented by either a Global Security (as defined below)
delivered to Chase, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC (a "BOOK-ENTRY NOTE") or a
certificate delivered to the holder thereof or a person designated by such
holder (a "CERTIFICATED NOTE"). Except as set
forth in the Indenture, an owner of a Book-Entry Note will not be entitled to
receive a Certificated Note.
Book-Entry Notes, which may be payable only in U.S. dollars, will be
issued in accordance with the administrative procedures set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC'S
operating procedures. Certificated Notes will be issued in accordance with the
administrative procedures set forth in Part II hereof. Unless otherwise defined
herein, terms defined in the Indenture, the Notes or any prospectus supplement
relating to the Notes shall be used herein as therein defined.
The Company will advise the Agents in writing of the employees of the
Company with whom the Agents are to communicate regarding offers to purchase
Notes and the related settlement details.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Chase will
perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter
of Representation from the Company and Chase to DTC, dated as of
September 18, 1998, and a Medium-Term Note Certificate Agreement between the
Trustee and DTC, dated as of December 2, 1998 (the "MTN CERTIFICATE
AGREEMENT"), and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under "SETTLEMENT" below)
for one or more Book-Entry Notes, the Company will issue a
single global security in fully registered form without coupons
(a "GLOBAL SECURITY") representing up to U.S. $200,000,000
principal amount of all such Notes that have the same Original
Issue Date, Maturity Date and other terms. Each Global
Security will be dated and issued as of the date of its
authentication by the Trustee. Each Global Security will bear
an "INTEREST ACCRUAL DATE," which will be (i) with respect to
an original Global Security (or any portion thereof), its
original issuance date and (ii) with respect to any Global
Security (or any portion thereof) issued subsequently upon
exchange of a Global Security, or in lieu of a destroyed, lost
or stolen Global Security, the most recent Interest Payment
Date to which interest has been paid or duly provided for on
the predecessor Global Security (or if no such payment or
provision
B-2
has been made, the original issuance date of the
predecessor Global Security), regardless of the date of
authentication of such subsequently issued Global Security.
Book-Entry Notes may be payable only in U.S. dollars.
No Global Security will represent any Certificated Note.
Denominations: Book-Entry Notes will be issued in principal amounts of U.S.
$1,000 or any amount in excess thereof that is an integral
multiple of U.S. $1,000. Global Securities will be denominated
in principal amounts not in excess of U.S. $200,000,000. If
one or more Book-Entry Notes having an aggregate principal
amount in excess of $200,000,000 would, but for the preceding
sentence, be represented by a single Global Security, then one
Global Security will be issued to represent each U.S.
$200,000,000 principal amount of such Book-Entry Note or Notes
and an additional Global Security will be issued to represent
any remaining principal amount of such Book-Entry Note or
Notes. In such a case, each of the Global Securities
representing such Book-Entry Note or Notes shall be assigned
the same CUSIP number.
Preparation If any offer to purchase a Book-Entry Note is accepted by or on
of Pricing behalf of the Company, the Company will prepare a pricing
Supplement: supplement (a "PRICING SUPPLEMENT") reflecting the terms of
such Note. The Company (i) will arrange to file such Pricing
Supplement with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act and (ii)
will, as soon as possible and in any event not later than the
date on which such Pricing Supplement is filed with the
Commission, deliver the number of copies of such Pricing
Supplement to the relevant Agent as such Agent shall request.
In each instance that a Pricing Supplement is prepared, the
relevant Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing Supplements,
and the Prospectuses to which they are attached (other than
those retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
payment for a Book-Entry Note and the authentication and
issuance of the Global Security representing such Note shall
constitute "SETTLEMENT" with respect to such Note. All offers
accepted by the Company will be settled on the third Business
Day next succeeding the date of acceptance, unless the Company
B-3
accepts an offer to purchase Notes after 4:30 p.m. on such
date in which case settlement will occur on the fourth
Business Day next succeeding such date of acceptance,
pursuant to the timetable for settlement set forth below,
unless the Company and the purchaser agree to settlement on
another day, which shall be no earlier than the next
Business Day.
Settlement Settlement Procedures with regard
Procedures: to each Book-Entry Note sold by the Company to or through an
Agent (unless otherwise specified pursuant to a Terms
Agreement) shall be as follows:
A. The relevant Agent will advise the Company by telephone
that such Note is a Book-Entry Note and of the following
settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note, the
Interest Rate, whether such Note will pay interest annually
or semiannually and whether such Note is an Amortizing Note,
and, if so, the amortization schedule, or, in the case of a
Floating Rate Book-Entry Note, the Initial Interest Rate (if
known at such time), Interest Payment Date(s), Interest
Payment Period, Calculation Agent, Base Rate, Index
Maturity, Interest Reset Period, Initial Interest Reset
Date, Interest Reset Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any), Maximum Interest Rate
(if any) and the Alternate Rate Event Spread (if any).
4. Redemption or repayment provisions (if any).
5. Settlement date and time (Original Issue Date).
6. Interest Accrual Date.
7. Price.
8. Agent's commission (if any) determined as provided in
the Distribution Agreement.
B-4
9. Whether the Note is an Original Issue Discount Note
(an "OID NOTE"), and if it is an OID Note, the total amount
of OID, the yield to maturity, the initial accrual period
OID and the applicability of Modified Payment upon
Acceleration (and, if so, the Issue Price).
10. Whether the Note is an Indexed Note, and if it is an
Indexed Note, the Denominated Currency, the Indexed Currency
or Currencies, the Payment Currency, the Exchange Rate
Agent, the Reference Dealers, the Face Amount, the Fixed
Amount of each Indexed Currency, the Aggregate Fixed Amount
of each Indexed Currency and the Authorized Denominations
(if other than U.S. dollars).
11. Whether the Note is a Renewable Note, and if it is a
Renewable Note, the Initial Maturity Date and the Final
Maturity Date.
12. Whether the Company has the option to extend the
Original Maturity Date of the Note, and, if so, the Final
Maturity Date of such Note.
13. Whether the Company has the option to reset the
Interest Rate, the Spread or the Spread Multiplier of the
Note.
14. Any other applicable terms.
B. The Company will advise Chase by telephone or
electronic transmission (confirmed in writing at any time on
the same date) of the information set forth in Settlement
Procedure "A" above. Chase will then assign a CUSIP
number to the Global Security representing such Note and will
notify the Company and the relevant Agent of such CUSIP number
by telephone as soon as practicable.
▇. ▇▇▇▇▇ will enter a pending deposit message through
DTC's Participant Terminal System, providing the following
settlement information to DTC, the relevant Agent and Standard
& Poor's Corporation:
1. The information set forth in Settlement Procedure "A".
B-5
2. The Initial Interest Payment Date for such Note, the
number of days by which such date succeeds the related DTC
Record Date (which in the case of Floating Rate Notes
which reset daily or weekly, shall be the date five
calendar days immediately preceding the applicable Interest
Payment Date and, in the case of all other Notes, shall be
the Record Date as defined in the Note) and, if known, the
amount of interest payable on such Initial Interest Payment
Date.
3. The CUSIP number of the Global Security representing
such Note.
4. Whether such Global Security will represent any other
Book-Entry Note (to the extent known at such time).
5. Whether such Note is an Amortizing Note (by an
appropriate notation in the comments field of DTC's
Participant Terminal System).
6. The number of participant accounts to be maintained by
DTC on behalf of the relevant Agent and Chase.
D. The Trustee will complete and authenticate the Global
Security representing such Note.
E. DTC will credit such Note to ▇▇▇▇▇'▇ participant
account at DTC.
▇. ▇▇▇▇▇ will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i) debit such
Note to ▇▇▇▇▇'▇ participant account and credit such Note
to the relevant Agent's participant account and (ii) debit such
Agent's settlement account and credit ▇▇▇▇▇'▇ settlement
account for an amount equal to the price of such Note less such
Agent's commission (if any). The entry of such a deliver order
shall constitute a representation and warranty by Chase
to DTC that (a) the Global Security representing such
Book-Entry Note has been issued and authenticated and
(b) Chase is holding such Global Security pursuant to the MTN
Certificate Agreement.
G. Unless the relevant Agent is the end purchaser of such
Note, such Agent will enter an SDFS deliver order through DTC's
B-6
Participant Terminal System instructing DTC (i) to debit such
Note to such Agent's participant account and credit such Note
to the participant accounts of the Participants with respect to
such Note
and (ii) to debit the settlement accounts of such Participants
and credit the settlement account of such Agent for an amount
equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled
in accordance with SDFS operating procedures in effect on the
settlement date.
▇. ▇▇▇▇▇ will credit to the account of the Company
maintained at Chase, in immediately available funds the
amount transferred to Chase in accordance with Settlement
Procedure "F".
J. Unless the relevant Agent is the end purchaser of such
Note, such Agent will confirm the purchase of such Note to the
purchaser either by transmitting to the Participants with
respect to such Note a confirmation order or orders through
DTC's institutional delivery system or by mailing a written
confirmation to such purchaser.
K. Monthly, Chase will send to the Company a statement
setting forth the principal amount of Notes outstanding as of
that date under the Indenture and setting forth a brief
description of any sales of which the Company has advised
Chase that have not yet been settled.
Settlement For sales by the Company of Book-Entry Notes to or through
Procedures an Agent (unless otherwise specified pursuant to a Terms
Timetable: Agreement) for settlement on the first Business Day after the
sale date, Settlement Procedures "A" through "J" set forth
above shall be completed as soon as possible but not later than
the respective times in New York City set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 a.m. on sale date
B 12:00 Noon on sale date
C 2:00 p.m. on sale date
D 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
B-7
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I-J 5:00 p.m. on settlement date
If a sale is to be settled more than a Business Day after the
sale date, Settlement Procedures "A", "B" and "C" shall be
completed as soon as practicable but no later than 11:00 A.M.,
12:00 Noon and 2:00 P.M., respectively, on the first Business
Day after the sale date. If the Initial Interest Rate for a
Floating Rate Book-Entry Note has not been determined at the
time that Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon as such rate
has been determined but no later than 12:00 Noon and 2:00 P.M.,
respectively, on the first Business Day before the settlement
date. Settlement Procedure "H" is subject to extension in
accordance with any extension of Fedwire closing deadlines and
in the other events specified in the SDFS operating procedures
in effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or cancelled,
Chase, after receiving notice from the Company or the
relevant Agent, will deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such effect by no
later than 2:00 p.m. on the Business Day immediately preceding
the scheduled settlement date.
Failure If Chase fails to enter an SDFS deliver order with
to Settle: respect to a Book-Entry Note pursuant to Settlement Procedure
"F", Chase may deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a withdrawal message
instructing DTC to debit such Note to ▇▇▇▇▇'▇ participant
account, provided that ▇▇▇▇▇'▇ participant account
contains a principal amount of the Global Security representing
such Note that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with respect to
all the Book-Entry Notes represented by a Global Security,
Chase will mark such Global Security "cancelled," make
appropriate entries in the Trustee's records and send such
cancelled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with the
procedures of the CUSIP Service Bureau of Standard & Poor's
Corporation, be cancelled and not immediately reassigned. If a
withdrawal message is processed with respect to one or more,
but not all, of the Book-Entry Notes represented by a Global
Security, Chase will exchange such Global Security for two
Global
B-8
Securities, one of which shall represent such
Book-Entry Note or Notes and shall be cancelled
immediately after issuance and the other of which shall
represent the remaining Book-Entry Notes previously represented
by the surrendered Global Security and shall bear the CUSIP
number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the relevant Agent
may enter SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered pursuant to
Settlement Procedures "F" and "G", respectively. Thereafter,
Chase will deliver the withdrawal message and take the
related actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures then in effect.
In the event of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedures "D" and "F", for the
authentication and issuance of a Global Security representing
the Book-Entry Notes to be represented by such Global Security
and will make appropriate entries in its records.
B-9
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as Registrar in connection with the Certificated
Notes.
Issuance: Each Certificated Note will be dated and issued as of the date
of its authentication by the Trustee. Each Certificated Note
will bear an Original Issue Date, which will be (i) with
respect to an original Certificated Note (or any portion
thereof), its original issuance date (which will be the
settlement date) and (ii) with respect to any Certificated Note
(or portion thereof) issued subsequently upon transfer or
exchange of a Certificated Note or in lieu of a destroyed, lost
or stolen Certificated Note, the original issuance date of the
predecessor Certificated Note, regardless of the date of
authentication of such subsequently issued Certificated Note.
Preparation If any offer to purchase a Certificated Note is accepted by or
of Pricing on behalf of the Company, the Company will prepare a Pricing
Supplement: Supplement reflecting the terms of such Note. The Company (i)
will arrange to file such Pricing Supplement with the
Commission in accordance with the applicable paragraph of Rule
424(b) under the Act and (ii) will, as soon as possible and in
any event not later than the date on which such Pricing
Supplement is filed with the Commission, deliver the number of
copies of such Pricing Supplement to the relevant Agent as such
Agent shall request.
In each instance that a Pricing Supplement is prepared, the
relevant Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing Supplements,
and the Prospectuses to which they are attached (other than
those retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
exchange for an authenticated Certificated Note delivered to
the relevant Agent and such Agent's delivery of such Note
against receipt of immediately available funds shall constitute
"SETTLEMENT" with respect to such Note. All offers accepted by
the Company will be settled on the third Business Day next
succeeding the date of acceptance, unless the Company accepts
an offer to purchase Notes after 4:30 p.m. on such date in
which case settlement will occur on the fourth Business Day
next succeeding such date of acceptance, pursuant to the
timetable for settlement set forth below, unless the Company
and the purchaser agree to
B-10
settlement on another date, which date shall be no earlier than
the next Business Day.
Settlement Settlement Procedures with regard to each Certificated Note
Procedures: sold by the Company to or through an Agent (unless otherwise
specified pursuant to a Terms Agreement) shall be as follows:
A. The relevant Agent will advise the Company by telephone
that such Note is a Certificated Note and of the following
settlement information:
1. Name in which such Note is to be registered
("REGISTERED OWNER").
2. Address of the Registered Owner and address for
payment of principal and interest.
3. Taxpayer identification number of the Registered
Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated Note, the
Interest Rate, whether such Note will pay interest
annually or semiannually and whether such Note is an
Amortizing Note and, if so, the amortization schedule,
or, in the case of a Floating Rate Certificated Note,
the Initial Interest Rate (if known at such time),
Interest Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index Maturity, Interest
Reset Period, Initial Interest Reset Date, Interest
Reset Dates, Spread or Spread Multiplier (if any),
Minimum Interest Rate (if any), Maximum Interest Rate
(if any) and the Alternate Rate Event Spread (if any).
7. Redemption or repayment provisions (if any).
8. Settlement date and time (Original Issue Date).
9. Interest Accrual Date.
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10. Price.
11. Agent's commission (if any) determined as
provided in the Distribution Agreement.
12. Denominations.
13. Specified Currency.
14. Whether the Note is an OID Note, and if it is an
OID Note, the total amount of OID, the yield to
maturity, the initial accrual period OID and the
applicability of Modified Payment upon Acceleration
(and if so, the Issue Price).
15. Whether the Note is an Indexed Note, and if it is
an Indexed Note, the Denominated Currency, the Indexed
Currency or Currencies, the Payment Currency, the
Exchange Rate Agent, the Reference Dealers, the Face
Amount, the Fixed Amount of each Indexed Currency, the
Aggregate Fixed Amount of each Indexed Currency and the
Authorized Denominations (if other than U.S. dollars).
16. Whether the Note is a Renewable Note, and if it
is a Renewable Note, the Initial Maturity Date and the
Final Maturity Date.
17. Whether the Company has the option to extend the
Original Maturity Date of the Note, and, if so, the
Final Maturity Date of such Note.
18. Whether the Company has the option to reset the
Interest Rate, the Spread or the Spread Multiplier of
the Note.
19. Any other applicable terms.
B. The Company will advise the Trustee by telephone or
electronic transmission (confirmed in writing at any time on
the same date) of the information set forth in Settlement
Procedure "A" above.
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C. The Company will have delivered to the Trustee a
pre-printed four-ply packet for such Note, which packet will
contain the following documents in forms that have been
approved by the Company, the relevant Agent and the Trustee:
1. Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note and authenticate
such Note and deliver it (with the confirmation) and
Stubs One and Two to the relevant Agent, and such Agent will
acknowledge receipt of the Note by stamping or otherwise
marking Stub One and returning it to the Trustee. Such
delivery will be made only against such acknowledgment of
receipt. The Agent will arrange for payment to the account
of the Company at Chase, or to such other
account as the Company shall have specified to such Agent
and the Trustee, in immediately available funds, of an
amount equal to the price of such Note less such Agent's
commission (if any). In the event that the instructions
given by such Agent for payment to the account of the
Company are revoked, the Company will as promptly as
possible wire transfer to the account of such Agent an
amount of immediately available funds equal to the amount
of such payment made.
E. Unless the relevant Agent is the end purchaser of such
Note, such Agent will deliver such Note (with confirmation)
to the customer against payment in immediately available
funds. Such Agent will obtain the acknowledgment of receipt
of such Note by retaining Stub Two.
F. The Trustee will send Stub Three to the Company by
first-class mail. Monthly, the Trustee will also send to
the Company a statement setting forth the principal amount
of the Notes outstanding as of that date under the Indenture
and setting forth a brief description of any sales of which
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the Company has advised the Trustee that have not yet been
settled.
Settlement For sales by the Company of Certificated Notes to or through an
Prcedures Agent (unless otherwise specified pursuant to a Terms
Timetable: Agreement), Settlement Procedures "A" through "F" set forth
above shall be completed on or before the respective times in
New York City set forth below:
Settlement
Procedure Time
---------- ----
A 2:00 p.m. on day before settlement date
B 3:00 p.m. on day before settlement date
C-D 2:15 p.m. on settlement date
E 3:00 p.m. on settlement date
F 5:00 p.m. on settlement date
Failure
to Settle: If a purchaser fails to accept delivery of and make payment for
any Certificated Note, the relevant Agent will notify the
Company and the Trustee by telephone and return such Note to
the Trustee. Upon receipt of such notice, the Company will
immediately wire transfer to the account of such Agent an
amount equal to the price of such Note less such Agent's
commission in respect of such Note (if any). Such wire
transfer will be made on the settlement date, if possible, and
in any event not later than the Business Day following the
settlement date. If the failure shall have occurred for any
reason other than a default by such Agent in the performance of
its obligations hereunder and under the Distribution Agreement,
then the Company will reimburse such Agent or the Trustee, as
appropriate, on an equitable basis for its loss of the use of
the funds during the period when they were credited to the
account of the Company. Immediately upon receipt of the
Certificated Note in respect of which such failure occurred,
the Trustee will mark such Note "cancelled," make appropriate
entries in the Trustee's records and send such Note to the
Company.
B-14
EXHIBIT C
PART I
FORM OF AGENT ACCESSION LETTER - PROGRAM
[Date]
To: The New York Times Company
Re: The New York Times Company (the "COMPANY")
U.S.$300,000,000 Medium-Term Note Program
-----------------------------------------
Ladies and Gentlemen:
We refer to the Distribution Agreement dated as of September 24, 1998 (as
amended, modified or supplemented from time to time, the "DISTRIBUTION
AGREEMENT") relating to the above Medium-Term Note Program and made between the
Company and the Agents party thereto. Unless otherwise defined herein, all
terms used herein have the meanings given to them in the Distribution Agreement.
We confirm that we are in receipt of a copy of the Distribution Agreement and
copies of all documents that we have requested and have found them to our
satisfaction.
For the purposes of the Distribution Agreement our notice details are as
follows:
(insert name, address, telephone, facsimile and attention).
In consideration of the appointment by the Company of us as an Agent under the
Distribution Agreement we hereby undertake, for the benefit of the Company and
each of the other Agents, that we will perform and comply with all the duties
and obligations expressed to be assumed by an Agent under the Distribution
Agreement.
This letter is governed by, and shall be construed in accordance with, the law
of the State of New York, without regard to conflicts of law principles.
Yours faithfully,
[Name of New Agent]
By
----------------------------
Name:
Title:
cc: _______________________ (Trustee)
_______________________ (Agents)
EXHIBIT C
PART II
FORM OF CONFIRMATION LETTER - PROGRAM
[Date]
To: [Name and address of new Agent]
Re: U.S.$300,000,000 Medium-Term Note Program
-----------------------------------------
Ladies and Gentlemen:
We refer to the Distribution Agreement dated as of September 24, 1998 (as
amended, modified or supplemented from time to time, the "DISTRIBUTION
AGREEMENT") relating to the above Medium-Term Note Program and hereby
acknowledge receipt of your Agent Accession Letter to us dated _____________.
In accordance with Section 11 of the Distribution Agreement we hereby confirm
that, with effect from the date hereof, you shall become a party to the
Distribution Agreement, vested with all the authority, rights, powers, duties
and obligations of an Agent as if originally named as Agent under the
Distribution Agreement.
Yours faithfully,
THE NEW YORK TIMES COMPANY
By
-----------------------------
Name:
Title:
C-2
EXHIBIT C
PART III
FORM OF AGENT ACCESSION LETTER - NOTE ISSUE
[Date]
To: The New York Times Company
Re: The New York Times Company (the "COMPANY")
U.S.$300,000,000 Medium-Term Note Program
-----------------------------------------
Ladies and Gentlemen:
We refer to the Distribution Agreement dated as of September 24, 1998 (as
amended, modified or supplemented from time to time, the "DISTRIBUTION
AGREEMENT") relating to the above Medium-Term Note Program and made between the
Company and the Agents party thereto. Unless otherwise defined herein, all
terms used herein have the meanings given to them in the Distribution Agreement.
We confirm that we are in receipt of a copy of the Distribution Agreement and
copies of all documents that we have requested and have found them to our
satisfaction.
For the purposes of the Distribution Agreement our notice details are as
follows:
(insert name, address, telephone, facsimile and attention).
In consideration of the Company appointing us as an Agent in respect of the
issue of [__________ Medium-Term Notes due __________] (the "ISSUE") under the
Distribution Agreement we hereby undertake, for the benefit of the Issuer and
each of the other Agents, that in relation to the Issue we will perform and
comply with all the duties and obligations expressed to be assumed by an Agent
under the Distribution Agreement.
This letter is governed by, and shall be construed in accordance with, the law
of the State of New York, without regard to conflicts of law principles.
Yours faithfully,
[Name of New Agent]
By
----------------------------
Name:
Title:
cc: _______________________ (Trustee)
C-3
EXHIBIT C
PART IV
FORM OF CONFIRMATION LETTER - NOTE ISSUE
[Date]
To: [Name and address of new Agent]
Re: The New York Times Company
U.S.$300,000,000 Medium-Term Note Program
-----------------------------------------
Ladies and Gentlemen:
We refer to the Distribution Agreement dated as of September 24, 1998 (as
amended, modified or supplemented from time to time, the "DISTRIBUTION
AGREEMENT") relating to the above Medium-Term Note Program and hereby
acknowledge receipt of your Agent Accession Letter to us dated ___________.
In accordance with Section 11 of the Distribution Agreement we hereby confirm
that, with effect from the date hereof in respect of the issue of __________
Medium-Term Notes due __________ (the "ISSUE"), you shall become a party to the
Distribution Agreement, vested with all the authority, rights, powers, duties
and obligations of an Agent in relation to the Issue as if originally named as
Agent under the Distribution Agreement, provided that following the issue of the
Notes representing the Issue you shall have no further authority, rights,
powers, duties or obligations except such as may have accrued or been incurred
prior to or in connection with the issue of such Notes.
Yours faithfully,
THE NEW YORK TIMES COMPANY
By
-----------------------------
Name:
Title:
cc: _______________________ (Trustee)
C-4