EXHIBIT 1.2
$_00,000,000
TRIBUNE COMPANY
MEDIUM-TERM NOTES, SERIES E
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
Selling Agency Agreement
Chicago, Illinois
, 1997
----------
[NAME AND ADDRESS OF AGENTS]
Dear Sirs:
Tribune Company, a Delaware corporation (the "Company"), confirms its
agreement with each of you with respect to the issue and sale by the Company of
up to the aggregate principal amount set forth in Schedule I hereto of its
Medium-Term Notes, Series E Due Nine Months or More from Date of Issue (the
"Notes"). The Notes will be issued under an indenture dated as of _________,
1997 between the Company and Bank of Montreal Trust Company, as trustee (the
"Trustee"), as supplemented to the date hereof and/or as modified from time to
time by resolutions of the Board of Directors as provided in Section 3.01
thereof (the "Indenture"). The Notes will, unless otherwise specified, be
issued in minimum denominations of $1,000 and in denominations exceeding such
amount by integral multiples of $1,000, will be issued only in fully registered
form and will have the maturities, annual interest rates, redemption provisions
and other terms set forth in a supplement to the Prospectus (as hereinafter
defined) referred to below. The Notes will be issued, and the terms thereof
established, in accordance with the Indenture and, in the case of Notes sold
pursuant to Section 2(a) hereof, the Medium-Term Notes Administrative Procedures
attached hereto as Exhibit A (the "Procedures"). The Procedures may only be
amended by written agreement of the Company and the Agents after notice to, and
with the approval of, the Trustee. For the purposes of this Agreement, the term
"Agent" shall refer to any of you acting solely in the capacity as agent for the
Company pursuant to Section 2(a) and not as principal (collectively, the
"Agents"), the term the "Purchaser" shall refer to any of you acting solely as
principal pursuant to Section 2(b) and not as agent (collectively, the
"Purchasers"), and the term "you" shall refer to you collectively whether at any
time any of you is acting in both such capacities or in either such capacity.
Nothing in this agreement shall preclude an Agent from purchasing Notes as a
principal hereunder while acting as an Agent.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to, and agrees with, the Agents that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such Form (the file number of which is set forth on Schedule I hereto), which
has become effective, for the registration under the Act of the aggregate
principal amount set forth in Schedule I hereto of debt securities including the
Notes (the "Securities"). Such registration statement, as amended at the date of
this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the
Act and complies in all other material respects with said Rule. In connection
with the sale of Notes the Company has filed or transmitted for filing with the
Commission
pursuant to Rule 424 under the Act, a supplement to the form of prospectus
included in such registration statement relating to the Notes and the plan of
distribution thereof (the "Prospectus Supplement") and has previously advised
the Agents of all further information (financial and other) with respect to the
Company to be set forth therein. In connection with the sale of Notes, the
Company will file with the Commission pursuant to Rule 424 under the Act further
supplements to that supplement specifying the maturity dates, interest rates and
other similar terms of any Notes sold pursuant thereto. Such registration
statement, including the exhibits thereto, as amended to the date of this
Agreement, is hereinafter called the "Registration Statement"; such prospectus,
in the form included in the Registration Statement, as supplemented from time to
time (including, without limitation, as supplemented by the Prospectus
Supplement) is hereinafter called the "Prospectus". Any reference herein to the
Registration Statement or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the date of this Agreement or the date of the
Prospectus, as the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include any amendment to the
Registration Statement filed with the Commission pursuant to the Act after the
date of this Agreement, any supplement to the Prospectus filed with this
Commission pursuant to Rule 424 under the Act after the date of this Agreement
and the filing of any document under the Exchange Act after the date of this
Agreement or the date of the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(b) (i) As of the date hereof, (ii) at the date of any acceptance by the
Company of an offer to purchase Notes, (iii) when any amendment to the
Registration Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), (iv) as of the date of
any Terms Agreement (as defined by Section 2(b)), (v) when any supplement to the
Prospectus is filed with the Commission and (vi) at the date of delivery by the
Company of any Notes sold hereunder (a "Closing Date"): (x) the Registration
Statement, as amended as of any such time, and the Prospectus, as supplemented
as of any such time, and the Indenture will comply in all material respects with
the applicable requirements of the Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the Exchange Act and the respective
rules and regulations thereunder, (y) the Registration Statement, as amended as
of any such time, did not or will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and (z) the
Prospectus, as supplemented as of any such time, will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (x) that part of the Registration Statement
which shall constitute the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee or (y) the information contained in or omitted from
the Registration Statement or Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any of you
specifically for use in the Registration Statement and the Prospectus.
(c) As of the date hereof, at the date of any acceptance by the Company of
an offer to purchase Notes, when any amendment to the Registration Statement
becomes effective (including the filing of any document incorporated by
reference in the Registration Statement), as of the date of any Terms Agreement,
when any supplement to the Prospectus is filed with the Commission and at a
Closing Date:
(i) each of the Company and Chicago Tribune Company, Sentinel
Communications Company, Sun-Sentinel Company and Tribune Broadcasting
Company (individually, a "Designated Subsidiary" and collectively, the
"Designated Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full corporate
power and authority to own its properties and conduct its business as
described in the Prospectus, and is duly qualified or licensed to do
business as a foreign corporation and is in good standing under the laws of
each jurisdiction where the character of the properties owned or leased or
the nature of the activities conducted by such corporations, respectively,
makes such qualifications or licensing
2
necessary, and where the failure to be so qualified or licensed might
materially adversely affect the financial condition, assets, operations or
prospects of the Company and its subsidiaries considered as one enterprise;
(ii) all the outstanding shares of capital stock of each Designated
Subsidiary have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of the Designated
Subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any perfected security interest and
any other security interests, claims, liens or encumbrances;
(iii) the Indenture has been duly authorized, executed and delivered
and constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law)); the
Indenture has been duly qualified under the Trust Indenture Act; and the
Notes have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid
for by the purchasers thereof, will constitute legal, valid and binding
obligations of the Company, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws of general
applicability relating to or affecting the enforcement of creditor's rights
or by the effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law) and will
be entitled to the benefits of the Indenture;
(iv) the financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Prospectus
present fairly the financial position of the Company and such consolidated
subsidiaries as at the dates indicated and the results of their operations
for the periods specified; except as stated therein, said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis;
(v) to the best knowledge of the Company, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of
the Designated Subsidiaries of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the Prospectus,
and there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to
be filed as an exhibit, which is not described or filed as required;
(vi) this Agreement has been duly authorized, executed and delivered
by the Company;
(vii) no consent, approval, authorization or order of any court or
governmental agency or body, domestic or foreign, is required for the
consummation of the transactions contemplated herein except such as have
been obtained under the Act and such as may be obtained under the blue sky
laws of any jurisdiction in connection with the sale of the Notes as
contemplated by this Agreement and such other approvals as have been
obtained; and
(viii) none of the execution of the Indenture, the issuance and sale
of the Notes, the consummation of any other of the transactions herein
contemplated or the fulfillment of the terms hereof will conflict with,
result in a breach of, or constitute a default under the charter or by-laws
of the Company or the terms of any indenture or other agreement or
instrument to which the Company or any of the Designated Subsidiaries is a
party or bound, or any order, decree, rule or regulation known to the
Company to be applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency,
3
governmental body or arbitrator, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries.
(d) The Company confirms as of the date hereof, and each acceptance by the
Company of an offer to purchase Notes will be deemed to be an affirmation, that
the Company is in compliance with all provisions of Section 1 of Laws of
Florida, Chapter 92-198, An Act Relating to Disclosure of Doing Business with
Cuba, and the Company further agrees that if it commences engaging in business
with the government of Cuba or with any person or affiliate located in Cuba
after the date the Registration Statement becomes or has become effective with
the Commission or with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or with any
person or affiliate located in Cuba changes in any material way, the Company
will provide the Department notice of such business or change, as appropriate,
in a form acceptable to the Department.
2. APPOINTMENT OF AGENT(S); SOLICITATION BY THE AGENTS OF OFFERS TO
PURCHASE; SALES OF NOTES TO A PURCHASER. (a) Subject to the terms and
conditions set forth herein and subject to the reservation by the Company of the
right to sell Notes directly to purchasers on its own behalf or through other
agents, dealers or underwriters on terms substantially identical to the terms
contained herein, including the commission schedule set forth in Schedule I
hereto, except in the case of sales pursuant to a Terms Agreement (as defined
herein) the Company hereby authorizes each of the Agents to act as its agent to
solicit offers for the purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
the Company, to use its reasonable best efforts to solicit offers to purchase
the Notes from the Company upon the terms and conditions set forth in the
Prospectus as amended or supplemented and in the Procedures.
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 the Notes. Upon receipt of instructions from
the Company, the Agents will forthwith suspend solicitation of offers to
purchase Notes from the Company until such time as the Company has advised them
that such solicitation may be resumed. If the Company has instructed the Agents
to suspend for any period of time the solicitation of offers to purchase the
Notes and thereafter requests the Agents to resume the solicitation of offers to
purchase the Notes, the Agents shall not be required to resume such solicitation
(i) earlier than the date five business days (or such fewer business days as
shall be acceptable to each such Agent) after such request and (ii) unless each
Agent shall have received prior to such resumption the documents referred to in
Sections 4(i), (j) and (k) which the Agents had been entitled to receive
(assuming that any required notices had been timely made) but which such Agents
shall not have theretofore received.
The Company agrees to pay each Agent a commission on the Closing Date with
respect to each sale of Notes by the Company as a result of a solicitation made
by such Agent, in an amount equal to that percentage specified on Schedule I
hereto of the aggregate principal amount of the Notes so sold by the Company and
such commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section and to the Procedures, offers for
the purchase of Notes may be solicited by an Agent as agent for the Company at
such time and in such amounts as such Agent deems advisable. The Company may
from time to time offer Notes for sale otherwise than through an Agent.
(b) Subject to the terms and conditions stated herein, whenever the
Company and one of you determines that the Company shall sell Notes directly to
you as Purchaser, each such sale of Notes shall be made in accordance with the
terms of this Agreement and a supplemental agreement relating thereto between
the Company and the Purchaser. Each such supplemental agreement (which (i) may
be an oral agreement between the Purchaser and the
4
Company or (ii) may take the form of an exchange of any standard form of written
telecommunication between a Purchaser and the Company) is herein referred to as
a "Terms Agreement." Each such Terms Agreement, if in writing, shall be
substantially in the form of Exhibit B and, if oral, shall be confirmed in
writing as soon as practicable after the agreement between the Purchaser and the
Company, such confirmation to be substantially in the form of Exhibit B. The
Purchaser's commitment to purchase Notes pursuant to any 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 describe the Notes to be purchased
by the Purchaser pursuant thereto, specify the principal amount of such Notes,
the price to be paid to the Company for such Notes, the rate at which interest
will be paid on the Notes, the Closing Date for such Notes, the place of
delivery of the Notes and payment therefor, the method of payment and any
modification of the requirements for the delivery of the opinions of counsel,
the certificates from the Company or its officers, and the letter from the
Company's independent public accountants, pursuant to Section 6(b). Such Terms
Agreement shall also specify the period of time referred to in Section 4(1).
Delivery of the certificates for Notes sold to the Purchaser pursuant to
any Terms Agreement shall be made as agreed to between the Company and the
Purchaser as set forth in the respective Terms Agreement, not later than the
Closing Date set forth in such Terms Agreement, against payment of funds to the
Company in the net amount due the Company for such Notes by the method and in
the form set forth in the respective Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a Terms
Agreement, any Note sold to a Purchaser (i) shall be purchased by such Purchaser
at a price equal to 100% of the principal amount thereof less a percentage equal
to the commission applicable to an agency sale of a Note of identical maturity
and (ii) may be resold by such Purchaser at varying prices from time to time or,
if set forth in the applicable Terms Agreement and Pricing Supplement, at a
fixed public offering price. In connection with any resale of Notes purchased, a
Purchaser may use a selling or dealer group and may reallow to any broker or
dealer any portion of the discount or commission payable pursuant hereto.
3. OFFERING AND SALE OF NOTES. Each Agent and the Company agree to perform
the respective duties and obligations specifically provided to be performed by
them in the Procedures.
4. AGREEMENTS. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes, the Company
will not file any amendment of the Registration Statement or supplement to the
Prospectus (except for a supplement relating to an offering of securities other
than the Notes) unless the Company has previously furnished to each of you a
copy for your review prior to filing. Subject to the foregoing sentence, the
Company will cause each supplement to the Prospectus to be filed with the
Commission as required pursuant to Rule 424. The Company will promptly advise
each of you (i) when each supplement to the Prospectus shall have been filed
with the Commission pursuant to Rule 424, (ii) when any amendment of the
Registration Statement shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or amendment of or
supplement to the 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 initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or notification and, if issued, to obtain as soon as possible
the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is required to
be delivered under the Act, any event occurs as a result of which the
Registration Statement, as then amended, or the Prospectus, as then
supplemented, would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
5
shall be necessary to amend the Registration Statement or to supplement the
Prospectus to comply with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will (i) notify each of you to suspend
solicitation of offers to purchase Notes (and, if so notified by the Company,
each of you shall forthwith suspend such solicitation and cease using the
Prospectus as then amended or supplemented), (ii) prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such statement or omission or an
amendment or supplement which will effect such compliance and (iii) supply any
such amended or supplemented Prospectus to each of you in such quantities as you
may reasonably request. If such amendment or supplement, and any documents,
certificates and opinions furnished to each of you pursuant to paragraph (f) of
this Section 4 in connection with the preparation or filing of such amendment or
supplement, are satisfactory in all respects to you, you will, upon the filing
of such amendment or supplement with the Commission and upon the effectiveness
of an amendment to the Registration Statement if such an amendment is required,
resume your obligation to solicit offers to purchase Notes hereunder.
(c) As soon as practicable, the Company will make generally available to
its security holders and to each of you an earnings statement or statements
(which need not be audited) of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to each of you and your counsel, without
charge, one signed and/or conformed copy of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective and, so long as delivery of a prospectus may be required by the Act,
the Company will furnish to each of you as many copies of any preliminary
Prospectus and the Prospectus and any amendments thereof and supplements thereto
as you may reasonably request.
(e) The Company will (i) arrange for the qualification of the Notes for
sale under the laws of such jurisdictions as you and the Company may mutually
agree, which agreement will not be unreasonably withheld, (ii) maintain such
qualifications in effect so long as required for the distribution of the Notes,
and (iii) arrange for the determination of the legality of the Notes for
purchase by institutional investors; provided, however, that the Company shall
not be required to effect or maintain any such qualification in any jurisdiction
that would result in it having to execute or file a general consent to service
of process under the laws of such jurisdiction or to qualify to do business as a
foreign corporation in such jurisdiction.
(f) The Company shall furnish to each of you such documents,
certificates of officers of the Company and opinions of counsel for the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, any preliminary Prospectus, the Prospectus, and any
amendments thereof or supplements thereto, the Indenture, the Notes, this
Agreement, any Terms Agreement, and the performance by the Company and each of
you of your respective obligations hereunder and thereunder as the Company and
each of you may from time to time and at any time prior to the termination of
this Agreement reasonably request.
(g) The Company shall, whether or not any sale of the Notes is consummated
(including, without limitation, if such non-sale occurs through any termination
pursuant to Section 9 hereof or any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision
hereof), (i) pay all expenses incident to the performance of its obligations
under this Agreement, including the fees and disbursements of its accountants
and counsel, the cost of printing and delivery of the Registration Statement,
any preliminary Prospectus, the Prospectus, all amendments thereof and
supplements thereto, the Indenture, this Agreement and all other documents
relating to the offering, the cost of preparing, printing, packaging and
delivering the Notes, the fees and disbursements, including fees of counsel,
incurred in connection with Section 4(e), the fees and disbursements of the
Trustee and the fees of any agency that rates the Notes and (ii) be responsible
for the fees of your counsel incurred in connection with both this Agreement and
the offering and sale of the Notes (up to an aggregate of $50,000).
6
(h) Each acceptance by the Company of an offer to purchase Notes will be
deemed to be (i) a representation and warranty to you that neither the
Registration Statement nor the Prospectus, as then amended or supplemented,
fails to reflect any facts or events which, individually or in the aggregate,
represent a material change in the information set forth in the Registration
Statement or the Prospectus, as then amended or supplemented and (ii) a
reconfirmation of the representations and warranties of the Company in Section
1(b).
(i) Each time that the Registration Statement or the Prospectus is amended
(including by the filing of any document incorporated by reference in the
Registration Statement other than a current report on form 8-K which is
reasonably deemed immaterial by all of the Agents) or supplemented (other than
by an amendment or supplement relating solely to any offering of securities
other than the Notes or providing solely for the specification of or a change in
the maturity dates, the interest rates, the issuance prices or other similar
terms offered on any Notes), the Company will deliver or cause to be delivered
promptly to each of you a certificate of the Company signed by the President or
any Vice President and the principal financial or accounting officer of the
Company, dated the date of the effectiveness of such amendment or the date of
filing of such supplement, in form reasonably satisfactory to you, to the effect
that the statements contained in the certificate that was last furnished to you
pursuant to either Section 5(d) or this Section 4(i) are true and correct at the
time of the effectiveness of such amendment or the filing of such supplement as
though made at and as of such time (except that (i) the last day of the fiscal
quarter for which financial statements of the Company were last filed with the
Commission shall be substituted for the corresponding date in such certificate
and (ii) such statements shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of the effectiveness
of such amendment or the filing of such supplement) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
Section 5(d) but modified to relate to the last day of the fiscal quarter for
which financial statements of the Company were last filed with the Commission
and to the Registration Statement and the Prospectus as amended and supplemented
to the time of the effectiveness of such amendment or the filing of such
supplement.
(j) Each time that the Registration Statement or the Prospectus is amended
(including by the filing of any document incorporated by reference in the
Registration Statement) or supplemented (other than by an amendment or
supplement (i) relating solely to any offering of securities other than the
Notes, (ii) providing solely for the specification of or a change in the
maturity dates, the interest rates, the issuance prices or other similar terms
offered on any Notes or (iii) setting forth or incorporating by reference
financial statements or other information as of and for a fiscal quarter,
unless, in the case of clause (iii) above, in the reasonable judgment of any of
you, confirmed to the Company in writing, such financial statements or other
information are of such a nature that an opinion of counsel should be
furnished), the Company shall furnish or cause to be furnished promptly to each
of you a written opinion of counsel of the Company satisfactory to each of you,
dated the date of the effectiveness of such amendment or the date of filing of
such supplement, in form satisfactory to each of you, of the same tenor as the
opinion referred to in Section 5(b) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement or, in lieu of
such opinion, counsel last furnishing such an opinion to you may furnish each of
you with a letter to the effect that you may rely on such last opinion to the
same extent as though it were dated the date of such letter authorizing reliance
(except that statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of the effectiveness of such amendment or the filing of such supplement).
(k) Each time that 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
Registration Statement or the Prospectus, the Company, upon the written request
of any Agent (except that no such request shall be required with respect to
audited financial statements and related financial information included or
incorporated by reference in the Company's Annual Reports on Form 10-K), shall
cause Price Waterhouse LLP ("Price Waterhouse"), its independent public
accountants, promptly to furnish to each of you a letter, dated the date of the
effectiveness of such amendment or the date of filing of such supplement, in
form satisfactory to each of you, of the same tenor as the letter referred to in
Section 5(e) with such changes as may be
7
necessary to reflect the amended and supplemental financial information included
or incorporated by reference in the Registration Statement and the Prospectus,
as amended or supplemented to the date of such letter, provided that if the
Registration Statement or the Prospectus is amended or supplemented solely to
include or incorporate by reference financial information as of and for a fiscal
quarter, Price Waterhouse may limit the scope of such letter, which shall be
satisfactory in form to each of you, to the unaudited financial statements
included in such amendment or supplement, unless any other information included
or incorporated by reference therein of an accounting, financial or statistical
nature is of such a nature that, in your reasonable judgment, such letter should
cover such other information.
(l) During the period, if any, specified in any Terms Agreement, the
Company shall not, without the prior consent of the Purchaser(s) thereunder,
issue or announce the proposed issuance of any of its debt securities, including
Notes, with terms substantially similar to the Notes being purchased pursuant to
such Terms Agreement.
(m) The Company, during the period when a prospectus relating to the Notes
is required to be delivered under the Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act and will furnish to each of you copies of such
documents. In addition, if the Company makes any announcement to the general
public concerning earnings or concerning any other event which is required to be
described, or which the Company proposes to describe, in a document filed
pursuant to the Exchange Act, the Company will furnish to each of you upon
request the information contained in such announcement as soon as practicable
after such announcement. The Company also will furnish to each of you upon
request copies of all other press releases or announcements to the general
public. The Company will immediately notify each of you of any downgrading in
the rating of the Notes or any other debt securities of the Company, by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 426(g) under the Act), as soon as the Company learns of any such
downgrading.
5. CONDITIONS TO THE OBLIGATIONS OF THE AGENT(S). The obligations of each
Agent to solicit offers to purchase the Notes shall be subject to (i) the
accuracy of the representations and warranties on the part of the Company
contained herein as of (v) the date hereof, (w) the date of acceptance by the
Company of an offer to purchase Notes, (x) the date of the effectiveness of any
amendment to the Registration Statement (including the filing of any document
incorporated by reference therein), (y) the date any supplement to the
Prospectus is filed with the Commission and (z) each Closing Date, (ii) the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, (iii) the performance by the Company of its obligations
hereunder and (iv) the following additional conditions precedent:
(a) If filing of the Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have
been filed in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to each Agent the opinion of
Sidley & Austin, counsel for the Company, dated the date hereof, to the effect
that:
(i) each of the Company and the Designated Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or organized,
with full corporate power and authority to own its properties and conduct
its business as described in the Prospectus;
(ii) all the outstanding shares of capital stock of each Designated
Subsidiary have been duly and validly authorized and issued and are fully
paid and nonassessable, and, to the knowledge of such counsel, except as
otherwise set forth in the Prospectus, all outstanding shares of capital
stock of the Designated
8
Subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries and are free and clear of any security interests,
claims, liens or encumbrances;
(iii) the Notes and the Indenture conform in all material respects to
the description thereof contained in the Prospectus; the holders of
outstanding shares of capital stock of the Company are not entitled to
rights to subscribe for the Notes;
(iv) the Indenture has been duly authorized, executed and delivered
by the Company and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws of general applicability relating
to or affecting the enforcement of creditor's rights or by the effect of
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law); the Indenture has been
duly qualified under the Trust Indenture Act; and the Notes have been duly
authorized and when executed and authenticated in accordance with the
provisions of the Indenture and the procedures adopted by the Board of
Directors of the Company and the Special Committee thereof and delivered to
and paid for by the purchasers thereof in the manner provided in this
Agreement, the Prospectus and any applicable Terms Agreement, will
constitute legal, valid and binding obligations of the Company except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws of general applicability relating
to or affecting the enforcement of creditor's rights or by the effect of
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) and will be entitled to the
benefits of the Indenture;
(v) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of
its Designated Subsidiaries of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the Prospectus,
and there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to
be filed as an exhibit to the Registration Statement, which is not
described or filed as required; and the statements included or incorporated
in the Prospectus with respect to any such action, suit, proceeding,
franchise, contract or other document fairly summarize the matters required
to be disclosed or described;
(vi) the Registration Statement and any amendments thereto have
become effective under the Act; to the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Prospectus and each amendment
thereof or supplement thereto as of their respective effective or issue
dates (other than the financial statements, financial data, statistical
data and supporting schedules included or incorporated by reference
therein, as to which such counsel need express no opinion) complied as to
form in all material respects with the applicable requirements of the Act
and the Exchange Act and the respective rules thereunder; and, although
such counsel has not independently verified, is not passing upon and
assumes no responsibility for the accuracy, completeness or fairness of
statements contained in the Registration Statement, the Prospectus or any
amendment thereof or supplement thereto, except as noted above, nor has
such counsel verified the computation or compilation of financial
statements and other financial data, nothing has come to such counsel's
attention which causes such counsel to believe that the Registration
Statement or any amendment thereof (other than the financial statements,
financial data, statistical data and supporting schedules, as to which such
counsel need express no belief) at the time it became effective and at the
date of this Agreement, 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 (other than the financial statements, financial data,
statistical data and supporting schedules, as to which such counsel need
express no belief), at the date of such opinion, includes any untrue
statement of a material fact or omits to state a material fact necessary
9
to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(vii) this Agreement has been duly authorized, executed and delivered
by the Company;
(viii) no consent, approval, authorization or order of any court or
governmental agency or body, domestic or foreign, is required for the
consummation of the transactions contemplated herein except such as have
been obtained under the Act and the Trust Indenture Act and such as may be
required under the blue sky laws of any jurisdiction in connection with the
sale or offer for sale of the Notes as contemplated by this Agreement and
such other approvals (specified in such opinion) as have been obtained;
(ix) none of the execution of the Indenture, the issuance and sale of
the Notes, the consummation of any other of the transactions herein
contemplated or the fulfillment of the terms hereof will result in a breach
of, or constitute a default under, the charter or by-laws of the Company or
the terms of any indenture or other material agreement or instrument known
to such counsel and to which the Company or any of its Designated
Subsidiaries is a party or bound, or any order, decree, rule or regulation
known to such counsel to be applicable to the Company or any of its
Designated Subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator, domestic or foreign, having
jurisdiction over the Company or any of its Designated Subsidiaries;
(x) no holders of outstanding securities of the Company have rights
to the registration of such securities under the Registration Statement;
and
(xi) such counsel confirms the statements contained in the Prospectus
under the caption "United States Federal Income Tax Consequences" as to the
principal anticipated Federal income tax consequences of the ownership of
the Notes for the purposes and to the extent set forth therein.
Such counsel may limit its opinion to matters involving the
application of the laws of the State of Illinois, the State of New York and
the United States and the General Corporation Law of the State of Delaware
and, in rendering such opinion, may rely as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the
Company and public officials.
(c) Each Agent shall have received from Xxxxx, Xxxxx & Xxxxx, counsel for
the Agents, such opinion or opinions, dated the date hereof, with respect to the
issuance and sale of the Notes, the Indenture, the Registration Statement, the
Prospectus and other related matters as the Agents may reasonably require, and
the Company shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to each Agent a certificate of the
Company, signed by the Chairman of the Board, the President or any Vice
President and by the principal financial or accounting officer of the Company,
dated the date hereof, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus and this Agreement
and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
date hereof with the same effect as if made on the date hereof and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied as a condition to the
obligation of the Agents to solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
10
(iii) since the date of the most recent financial statements included
in the Prospectus, there has been no material adverse change in the
condition (financial or other), earnings, business or properties of the
Company and its subsidiaries, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Prospectus.
(e) At the date hereof, Price Waterhouse shall have furnished to the
Agents a letter or letters (which may refer to letters previously furnished to
the Agents), dated as of the date hereof, in form and substance satisfactory to
the Agents and Price Waterhouse, confirming that they are independent
accountants with respect to the Company within the meaning of the Act and the
applicable published rules and regulations thereunder and stating in effect
that:
(i) in their opinion, the consolidated financial statements
(including financial schedules) of the Company and its subsidiaries
examined by and reported on by them and included or incorporated by
reference in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and
regulations thereunder with respect to registration statements on Form S-3;
(ii) on the basis of procedures of review in accordance with
standards established by the American Institute of Certified Public
Accountants (but not an audit in accordance with generally accepted
auditing standards) consisting of:
(1) reading the minutes of meetings of the stockholders and the
Board of Directors of the Company as set forth in the minute books
through a specified date not more than five business days prior to the
date of delivery of such letter;
(2) reading the latest available unaudited interim consolidated
financial data of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement or
the Prospectus and the latest unaudited interim financial data made
available by the Company and its subsidiaries; and
(3) making inquiries of certain officials of the Company who
have responsibilities for financial and accounting matters regarding
the specific items for which representations are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(A) the unaudited interim consolidated financial data of
the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations
thereunder;
(B) any material modifications should be made to said
unaudited consolidated financial data of the Company and its
consolidated subsidiaries for it to be in conformity with
generally accepted accounting principles;
(C) (i) with respect to the period subsequent to the date
of the most recent financial statements (other than any capsule
information), audited or unaudited, included or incorporated by
reference in the Registration Statement and the Prospectus, at
the date of the latest available interim financial data and at a
specified date not more than five business days prior to the date
of delivery of such letter, except as otherwise disclosed
11
in the Prospectus or incorporated by reference, there was any
change in the common stock or long-term debt of the Company and
its consolidated subsidiaries or any decreases in consolidated
total assets, net current assets (working capital) or
stockholders' investment as compared with amounts shown in the
latest consolidated balance sheet included or incorporated by
reference in the Registration Statement or the Prospectus or (ii)
for the period from the date of the most recent financial
statements included or incorporated by reference in the
Registration Statement or the Prospectus to a specified date not
more than five business days prior to delivery of such letter,
except as otherwise disclosed in the Prospectus or incorporated
by reference or disclosed to you, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated operating revenues, operating profit, income before
income taxes or in the total or per-share amounts of net income,
except in all instances for changes or decreases which the
Registration Statement and the Prospectus disclose have occurred
or may occur, or as set forth in such letter accompanied by an
explanation thereof;
(D) with regard to the Company and its consolidated
subsidiaries, the amounts included in any unaudited "capsule"
information included or incorporated by reference in the
Registration Statement or the Prospectus do not agree with the
corresponding amounts in the unaudited or audited consolidated
financial statements from which such amounts were derived or were
not determined on a basis substantially consistent with that of
the corresponding amounts in the audited financial statements
included or incorporated by reference in the Registration
Statement and the Prospectus.
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company and its subsidiaries and subject to the Company's system of
internal accounting controls relating to the preparation of the financial
statements) set forth or incorporated by reference in the Registration
Statement and the Prospectus, as amended or supplemented, including Exhibit
12 to the Registration Statement and the information included or
incorporated in Items 1, 6 and 7 of the Company's Annual Report on Form
10-K and in "Management's Discussion and Analysis of Financial Condition
and Results of Operations" included or incorporated by reference in any of
the Company's Quarterly Reports on Form 10-Q, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions of
legal interpretation; and
(iv) if unaudited pro forma financial statements are included or
incorporated by reference in the Registration Statement and the Prospectus,
on the basis of a reading of the unaudited pro forma financial statements,
carrying out certain specified procedures, inquiries of certain officials
of the Company and the acquired company who have responsibility for
financial and accounting matters, and proving the arithmetic accuracy of
the pro forma financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements were not
properly compiled on the pro forma bases set forth in the notes thereto.
References to the Registration Statement and the Prospectus in this
paragraph (e) are to such documents as amended and supplemented at the date of
the letter.
(f) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall not have been (i) any
change or decrease specified in the letter or letters referred to in paragraph
(e) of this Section 5, except as otherwise disclosed in the Prospectus or
incorporated by reference or (ii) any change, or any development involving a
prospective change, in or affecting the business or properties of, the Company
and its subsidiaries the effect of which, in any case referred to in clause (i)
or (ii) above, is, in the
12
judgment of each Agent, so material and adverse as to make it impractical or
inadvisable to proceed with the soliciting of offers to purchase the Notes as
contemplated by the Registration Statement and the Prospectus.
(g) Prior to the date hereof, the Company shall have furnished to each
Agent such further information, certificates and documents as such Agent may
reasonably request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to either Agent and its counsel, this Agreement and all
obligations of such Agent hereunder may be canceled at any time by such Agent.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be delivered
at the office of Xxxxx, Xxxxx & Xxxxx, counsel for the Agents, at 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx on the date hereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER(S). The obligations of
the Purchaser(s) to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of any related Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) If specified by any related Terms Agreement and except to the extent
modified by such Terms Agreement, the Purchaser(s) shall have received,
appropriately updated, (i) a certificate of the Company, dated as of the Closing
Date, to the effect set forth in Section 5(d), (ii) the opinion of Sidley &
Austin, counsel for the Company, dated as of the Closing Date, to the effect set
forth in Section 5(b), (iii) the opinion of Xxxxx, Xxxxx & Xxxxx, counsel for
the Purchaser(s), dated as of the Closing Date, to the effect set forth in
Section 5(c), and (iv) a letter of Price Waterhouse, independent accountants for
the Company, dated as of the Closing Date, to the effect set forth in Section
5(e).
(c) Prior to the Closing Date, the Company shall have furnished to the
Purchaser(s) such further information, certificates and documents as the
Purchaser(s) may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement and
any Terms Agreement, or if any of the opinions and certificates mentioned above
or elsewhere in this Agreement or such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the
Purchaser(s) and its counsel, such Terms Agreement and all obligations of the
Purchaser(s) thereunder and with respect to the Notes subject thereto may be
canceled at, or at any time prior to, the respective Closing Date by the
Purchaser(s). Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
7. RIGHT OF PERSON WHO AGREED TO PURCHASE TO REFUSE TO PURCHASE. The
Company agrees that any person who has agreed to purchase and pay for any Note,
including a Purchaser and any person who purchases pursuant to a solicitation by
any of the Agents, shall have the right to refuse to purchase such Note if, at
the Closing Date therefor, either (a) any condition set forth in Section 5 or 6,
as applicable, shall not be satisfied or (b) subsequent to the agreement to
purchase such Note, any change, or any development involving a prospective
change, in or affecting the business or properties of the Company and its
subsidiaries shall have occurred the effect of which is,
13
in the judgment of such Purchaser or the Agent which presented the offer to
purchase such Note, as applicable, so material and adverse as to make it
impractical or inadvisable to proceed with the delivery of such Note.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each of you and each person who controls each of you within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of you or
them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the
Prospectus or any preliminary Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of such of you specifically for use therein or arises out of or is based
on the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the
Trustee and (ii) such indemnity with respect to the Prospectus, in the form
included in the registration statement as filed, any Preliminary Prospectus or
any preliminary Prospectus Supplement shall not inure to the benefit of any
Agent (or any person controlling such Agent) through which the person asserting
any such loss, claim, damage or liability purchased the Notes which are the
subject thereof if such person did not receive a copy of the Prospectus
Supplement (or the Prospectus Supplement as amended or supplemented) excluding
documents incorporated therein by reference at or prior to the confirmation of
the sale of such Notes to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Prospectus, in the form included in the registration statement
as filed, any Preliminary Prospectus or any preliminary Prospectus Supplement
was corrected in the Prospectus Supplement (or the Prospectus Supplement as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each of you agrees to indemnify and hold harmless the Company, each of
its directors, each of its officers who signs the Registration Statement, and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
you, but only with reference to written information relating to such of you
furnished to the Company by or on behalf of such of you specifically for use in
the documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which you may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume
14
the defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (other than local
counsel used principally to facilitate local litigation), approved by you in the
case of paragraph (a) of this Section 8, representing the indemnified parties
under such paragraph (a) who are parties to such action), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii). 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 (after all rights to appeal have been
exhausted) 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 reasonable fees and expenses of counsel required to be
paid by this Section 8(c), 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 90 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
aforesaid request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party (which consent
shall not be unreasonably withheld), effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is a 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) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on grounds of policy or otherwise, the
Company and each of you shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and
such of you may be subject in such proportion so that each of you is responsible
for that portion represented by the percentage that the aggregate commissions
received by you individually pursuant to Section 2 in connection with the Notes
from which such losses, claims, damages and liabilities arise (or, in the case
of Notes sold pursuant to a Terms Agreement, the aggregate commissions that
would have been received by you individually if such commissions had been
payable), bears to the aggregate principal amount of the Notes sold and the
Company is responsible for the balance; provided, however, that (y) in no case
shall you individually be responsible for any amount in excess of the
commissions received by you individually in connection with the Notes from which
such losses, claims, damages and liabilities arise (or, in the case of Notes
sold pursuant to a Terms Agreement, the aggregate commissions that would have
been received by you individually if such commissions had been payable), and (z)
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls each of you within the meaning of the Act shall have
the same rights to contribution as you and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clause (y) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom
15
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
9. TERMINATION. (a) This Agreement will continue in effect until
terminated as provided in this Section 9. This Agreement may be terminated by
either the Company as to any of you or by any of you insofar as this Agreement
relates to you by giving written notice of such termination to you or the
Company, as the case may be; provided, however, that for so long as is required
by the Act, the Company shall keep available a current Prospectus meeting the
requirements of the Act and shall file all amendments and supplements under the
Act required for that purpose. This Agreement shall so terminate at the close
of business on the first business day following the receipt of such notice by
the party to whom such notice is given. In the event of such termination, no
party shall have any liability to the other party hereto, except as provided in
the fourth paragraph of Section 2(a) with respect to unpaid commissions, Section
4(g), Section 8 and Section 10.
(b) Each Terms Agreement shall be subject to termination in the absolute
discretion of the Purchaser, by notice given to the Company prior to delivery of
any payment for Notes to be purchased thereunder, if prior to such time (i)
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of the business, (ii) trading in the Company's common stock
shall have been suspended by the Commission or the New York Stock Exchange or
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (iii) a banking moratorium shall have been declared either by Federal
or New York State authorities, (iv) there shall have occurred any material
adverse change in the financial markets in the United States or any outbreak or
escalation of hostilities or other national or international calamity or crisis
the effect of which is such as to make it, in the judgment of the Purchaser,
impracticable to market such Notes or enforce contracts for the sale of such
Notes, or (v) there shall have been, subsequent to the agreement to purchase
such Note, any downgrading in the rating accorded the Company's debt securities
by any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 426(g) under the Act).
10. REPRESENTATION AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of you set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of either of you or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Notes. The provisions of Section 4(g) and 8 hereof shall
survive the termination or cancellation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to either of you, will be mailed,
delivered or telegraphed and confirmed to such of you, at the addresses
specified in Schedule I hereto; or if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at Tribune Company, 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000, attention of Xxxxx X. Xxxxxx, Vice
President and Treasurer (with a copy to the General Counsel of Tribune Company).
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder, except as otherwise
provided in Section 7 hereof.
13. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
16
14. COUNTERPARTS. This Agreement and any amendments hereto may be
executed in any number of counterparts, each of which shall be deemed to be an
original but all of which together shall constitute but one agreement.
17
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and each other countersigning party.
Very truly yours,
TRIBUNE COMPANY
By: ----------------------------
Title:
The foregoing Agreement is hereby confirmed and
accepted as of the date hereof.
[SIGNATURES OF AGENTS]
18
SCHEDULE I
Selling Agency Agreement dated , 1997
--------
Registration Statement No. 333-
Amount of the Notes: $ 00,000,000
-
Amount of the Securities: $ 00,000,000
-
The Company agrees to pay the Agents a commission equal to the following
percentage of the principal amount of each Note sold by the Agents:
Term Commission Rate
---- ---------------
9 months to less than 12 months............ .125%
12 months to less than 18 months........... .150%
18 months to less than 2 years............. .200%
2 years to less than 3 years............... .250%
3 years to less than 4 years............... .350%
4 years to less than 5 years............... .450%
5 years to less than 6 years............... .500%
6 years to less than 7 years............... .550%
7 years to less than 10 years.............. .600%
10 years to less than 15 years............. .625%
15 years to less than 20 years............. .700%
20 years to less than 30 years............. .750%
Over 30 years.............................. To be negotiated
at the time of
such sale.
Addresses for Notice to Agents:
Notices to the Agents shall be directed to them at:
I-1
EXHIBIT A
---------
TRIBUNE COMPANY
ADMINISTRATIVE PROCEDURES
FOR FIXED RATE AND FLOATING RATE MEDIUM-TERM NOTES
(DATED AS OF , 1997)
Medium-Term Notes Due Nine Months or More From Date of Issue (the "Notes")
are to be offered on a continuous basis by TRIBUNE COMPANY, a Delaware
corporation (the "Company"), to or through [NAMES OF AGENTS] (each, an "Agent"
and, collectively, the "Agents") pursuant to a Selling Agency Agreement, dated
, 1997 (the "Selling Agency Agreement"), by and among the Company and
the Agents. The Selling Agency Agreement provides both for the sale of Notes by
the Company to one or more of the Agents as principal for resale to investors
and other purchasers and for the sale of Notes by the Company directly to
investors (as may from time to time be agreed to by the Company and the related
Agent or Agents), in which case each such Agent will act as an agent of the
Company in soliciting purchases of Notes.
Unless otherwise agreed by the related Agent or Agents and the Company,
Notes will be purchased by the related Agent or Agents as principal. Such
purchases will be made in accordance with terms agreed upon by the related Agent
or Agents and the Company (which terms shall be agreed upon orally, with written
confirmation prepared by the related Agent or Agents and mailed to the Company).
If agreed upon by any Agent or Agents and the Company, the Agent or Agents,
acting solely as agent or agents for the Company and not as principal, will use
reasonable best efforts to solicit offers to purchase the Notes. Only those
provisions in these Administrative Procedures that are applicable to the
particular role to be performed by the related Agent or Agents shall apply to
the offer and sale of the relevant Notes.
The Notes will be issued as a series of debt securities under an
Indenture, dated as of , 1997, as amended, supplemented or modified
from time to time (the "Indenture"), between the Company and Bank of Montreal
Trust Company, as trustee (together with any successor in such capacity, the
"Trustee"). The Company has filed a Registration Statement with the Securities
and Exchange Commission (the "Commission") registering debt securities and
warrants to purchase debt securities (which includes the Notes) (the
"Registration Statement", which term shall include any additional registration
statements filed in connection with the Notes). The most recent base prospectus
deemed part of the Registration Statement, as supplemented with respect to the
Notes, is herein referred to as "Prospectus". The most recent supplement to the
Prospectus setting forth the purchase price, interest rate or formula, maturity
date and other terms of the Notes (as applicable) is herein referred to as the
"Pricing Supplement".
The Notes will either be issued (a) in book-entry form and represented by
one or more fully registered Notes without coupons (each, a "Global Note")
delivered to the Trustee, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC, or (b) in certificated form
(each, a "Certificated Note") delivered to the investor or other purchaser
thereof or a person designated by such investor or other purchaser.
General procedures relating to the issuance of all Notes are set forth in
Part I hereof. Additionally, Notes issued in book-entry form will be issued in
accordance with the procedures set forth in Part II hereof and Certificated
Notes will be issued in accordance with the procedures set forth in Part III
hereof. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Indenture or the Notes, as the case may be.
A-1
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of its
authentication by the Trustee. Each Note shall also
bear an original issue date (each, an "Original Issue
Date"). The Original Issue Date shall remain the same
for all Notes subsequently issued upon transfer,
exchange or substitution of an original Note regardless
of their dates of authentication.
Maturities: Each Note will mature on a date nine months or more
from its Original Issue Date (the "Stated Maturity
Date") selected by the investor or other purchaser and
agreed to by the Company.
Registration: Unless otherwise provided in the applicable Pricing
Supplement, Notes will be issued only in fully
registered form.
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, the Notes will be issued in denominations
of $1,000 and integral multiples thereof.
Interest Rate Bases
applicable to
Floating Rate
Notes: Unless otherwise provided in the applicable Pricing
Supplement, Floating Rate Notes will bear interest at a
rate or rates determined by reference to the CD Rate,
the CMT Rate, the Commercial Paper Rate, the Eleventh
District Cost of Funds Rate, the Federal Funds Rate,
LIBOR, the Prime Rate, the Treasury Rate, or such other
interest rate basis or formula as may be set forth in
applicable Pricing Supplement, or by reference to two
or more such rates, as adjusted by the Spread and/or
Spread Multiplier, if any, applicable to such Floating
Rate Notes.
Redemption/Repayment: The Notes will be subject to redemption by the Company
in accordance with the terms of the Notes, which will
be fixed at the time of sale and set forth in the
applicable Pricing Supplement. If no Initial Redemption
Date is indicated with respect to a Note, such Note
will not be redeemable prior to its Stated Maturity
Date.
The Notes will be subject to repayment at the option of
the Holders thereof in accordance with the terms of the
Notes, which will be fixed at the time of sale and set
forth in the applicable Pricing Supplement. If no
Optional Repayment Date is indicated with respect to a
Note, such Note will not be repayable at the option of
the Holder prior to its Stated Maturity Date.
Calculation of
Interest: In case of Fixed Rate Notes, interest (including
payments for partial periods) will be calculated and
paid on the basis of a 360-day year of twelve 30-day
months.
A-2
The interest rate on each Floating Rate Note will be
calculated by reference to the specified Interest Rate
Basis or Bases plus or minus the applicable Spread, if
any, and/or multiplied by the applicable Spread
Multiplier, if any.
Unless otherwise provided in the applicable Pricing
Supplement, interest on each Floating Rate Note will be
calculated by multiplying its face amount by an accrued
interest factor. Such accrued interest factor is
computed by adding the interest factor calculated for
each day in the period for which accrued interest is
being calculated. Unless otherwise provided in the
applicable Pricing Supplement, the interest factor for
each such day is computed by dividing the interest rate
applicable to such day by 360 if the CD Rate,
Commercial Paper Rate, Eleventh District Cost of Funds
Rate, Federal Funds Rate, LIBOR or Prime Rate is an
applicable Interest Rate Basis, or by the actual number
of days in the year if the CMT Rate or Treasury Rate is
an applicable Interest Rate Basis. As provided in the
applicable Pricing Supplement, the interest factor for
Notes for which the interest rate is calculated with
reference to two or more Interest Rate Bases will be
calculated in each period in the same manner as if only
one of the applicable Interest Rate Bases applied as
specified in the applicable Pricing Supplement and the
Notes.
Interest: General. Each Note will bear interest in accordance
with its terms. Unless otherwise provided in the
applicable Pricing Supplement, interest on each Note
will accrue from and including the Original Issue Date
of such Note for the first interest period or from the
most recent Interest Payment Date (as defined below) to
which interest has been paid or duly provided for all
subsequent interest periods to but excluding applicable
Interest Payment Date or the Stated Maturity Date or
date of earlier redemption or repayment, as the case
may be (the Stated Maturity Date or date of earlier
redemption or repayment is referred to herein as the
"Maturity Date" with respect to the principal repayable
on such date).
If an Interest Payment Date or the Maturity Date with
respect to any Fixed Rate Note falls on a day that is
not a Business Day (as defined below), the required
payment to be made on such day need not be made on such
day, but may be made on the next succeeding Business
Day with the same force and effect as if made on such
day, and no interest shall accrue on the amount so
payable for the period from and after such Interest
Payment Date or Maturity, as the case may be. If an
Interest Payment Date other than the Maturity Date with
respect to any Floating Rate Note would otherwise fall
on a day that is not a Business Day, such Interest
Payment Date will be postponed to the next succeeding
Business Day, except that in the case of a Note for
which LIBOR is an applicable Interest Rate Basis, if
such Business Day falls in the next succeeding calendar
month, such Interest Payment Date will be the
immediately preceding Business Day. If the Maturity
Date with respect to any Floating Rate Note falls on a
day that is not a Business Day, the required payment to
be made on such day need not be made on such day, but
may be made on the next succeeding Business Day with
the same force and effect as if made on such day, and
no interest shall accrue from and after
A-3
such Maturity. Unless otherwise provided in the
applicable Pricing Supplement, "Business Day" means any
day that is not a day on which banking institutions are
authorized or required by law, regulation or executive
order to close in The City of New York; provided,
however, that, with respect to Notes the payment of
which is to be made in a currency other than U.S.
dollars or composite currencies (such currency or
composite currency in which a Note is denominated is
the "Specified Currency"), such day is also not a day
on which banking institutions are authorized or
required by law, regulation or executive order to close
in the Principal Financial Center (as defined below) of
the country issuing such Specified Currency (or, in the
case of European Currency Units ("ECUs"), is not a day
that is designated as an ECU non-settlement day by the
ECU Banking Association in Paris or otherwise generally
regarded in the ECU interbank market as a day on which
payments on ECUs shall not be made; provided, further,
that, with respect to Notes for which LIBOR is an
applicable Interest Rate Basis, such day is also a
London Business Day (as defined below). "London
Business Day" means (i) if the currency (including
composite currencies) specified in the applicable
Pricing Supplement as the currency (the "Index
Currency") for which LIBOR is calculated is other than
ECU, any day on which dealings in such Index Currency
are transacted in the London interbank market or (ii)
if the Index Currency is ECU, any day that is not
designated as an ECU non-settlement day by the ECU
Banking Association in Paris or otherwise generally
regarded in the ECU interbank market as a day on which
payments on ECUs shall not be made. It being understood
that if no such currency or composite currency is
specified in the applicable Pricing Supplement, the
Index Currency shall be U.S. dollars. "Principal
Financial Center" means the capital city of the country
issuing the currency or composite currency in which any
payment in respect of the Notes is to be made or,
solely with respect to the calculation of LIBOR, the
Index Currency, except that with respect to U.S.
dollars, Australian dollars, Deutsche marks, Dutch
guilders, Italian lire, Swiss francs and ECUs, the
Principal Financial Center shall be The City of New
York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
Regular Record Dates. Unless otherwise provided in the
applicable Pricing Supplement, the "Regular Record
Date" for a Note shall be the date 15 calendar days
(whether or not a Business Day) preceding the
applicable Interest Payment Date.
Interest Payment Dates. Interest payments will be made
on each Interest Payment Date commencing with the first
Interest Payment Date following the Original Issue
Date; provided, however, the first payment of interest
on any Note originally issued between a Regular Record
Date and an Interest Payment Date will occur on the
Interest Payment Date following the next succeeding
Regular Record Date.
Unless otherwise provided in the applicable Pricing
Supplement, interest payments on Fixed Rate Notes will
be made semiannually in arrears on May 15 and November
15 of each year and on the
A-4
Maturity Date, while interest payments on Floating Rate
Notes will be made as specified in the applicable
Pricing Supplement.
Acceptance and
Rejection of Offers
from Solicitation
as Agents: If agreed upon by any Agent and the Company, then such
Agent acting solely as agent for the Company and not as
principal will solicit purchases of the Notes. Each
Agent will communicate to the Company, orally or in
writing, each reasonable offer to purchase Notes
solicited by such Agent on an agency basis, other than
those offers rejected by such Agent. Each Agent has the
right, in its discretion reasonably exercised, to
reject any proposed purchase of Notes, as a whole or in
part, and any such rejection shall not be a breach of
such Agent's agreement contained in the Selling Agency
Agreement. The Company has the sole right to accept or
reject any proposed purchase of Notes, in whole or in
part, and any such rejection shall not a breach of the
Company's agreement contained in the Selling Agency
Agreement. Each Agent has agreed to make reasonable
best 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.
Preparation of
Pricing Supplement: If any offer to purchase a Note is accepted by the
Company, the Company will promptly prepare a Pricing
Supplement reflecting the terms of such Note.
Information to be included in the Pricing Supplement
shall include:
1. the name of the Company;
2. the title of the Notes;
3. the date of the Pricing Supplement and the date of
the Prospectus to which the Pricing Supplement
relates;
4. the name of the Offering Agent (as defined below);
5. whether such Notes are being sold to the Offering
Agent as principal or to an investor or other
purchaser through the Offering Agent acting as
agent for the Company;
6. with respect to Notes sold to the Offering Agent
as principal, whether such Notes will be resold by
the Offering Agent to investors and other
purchasers at (i) a fixed public offering price of
a specified percentage of their principal amount
or (ii) at varying prices related to prevailing
market prices at the time of resale to be
determined by the Offering Agent;
7. with respect to Notes sold to an investor or other
purchaser through the Offering Agent acting as
agent for the Company, whether such Notes will be
sold at (i) 100% of
A-5
their principal amount or (ii) a specified
percentage of their principal amount;
8. the Offering Agent's discount or commission;
9. Net proceeds to the Company;
10. the Principal Amount, Specified Currency, Original
Issue Date, Stated Maturity Date, Interest Payment
Date(s), Authorized Denomination, Initial
Redemption Date, if any, Initial Redemption
Percentage, if any, Annual Redemption Percentage
Reduction, if any, Optional Repayment Date(s), if
any, Exchange Rate Agent, if any, Default Rate, if
any, and, in the case of Fixed Rate Notes, the
Interest Rate, and whether such Fixed Rate Note is
an Original Issue Discount Note (and, if so, the
Issue Price), and, in the case of Floating Rate
Notes, the Interest Category, the Interest Rate
Basis or Bases, the Day Count Convention, Index
Maturity (if applicable), Initial Interest Rate,
if any, Maximum Interest Rate, if any, Minimum
Interest Rate, if any, Initial Interest Reset
Date, Interest Reset Dates, Spread and/or Spread
Multiplier, if any, and Calculation Agent; and
11. any other additional provisions of the Notes
material to investors or other purchasers of the
Notes not otherwise specified in the Prospectus.
The Company shall use its reasonable best efforts to
send such Pricing Supplement by telecopy or overnight
express (for delivery by the close of business on the
applicable trade date, but in no event later than 11:00
a.m. New York City time, on the Business Day following
the applicable trade date) to the Agent which made or
presented the offer to purchase the applicable Note (in
such capacity, the "Offering Agent") and the Trustee at
the following applicable address: if to [NAMES AND
CONTACTS FOR AGENTS].
In each instance that a Pricing Supplement is prepared,
the Offering Agent will provide a copy of such Pricing
Supplement to each investor or purchaser of the
relevant Notes or its agent. Pursuant to Rule 434
("Rule 434") of the Securities Act of 1933, as amended,
the Pricing Supplement may be delivered separately from
the Prospectus. Outdated Pricing Supplements (other
than those retained for files) will be destroyed.
Settlement: The receipt of immediately available funds by the
Company in payment for a Note and the authentication
and delivery of such Note shall, with respect to such
Note, constitute "settlement". Offers accepted by the
Company will be settled three Business Days, or at such
time as the purchaser, the applicable Agent and the
Company shall agree, pursuant to the timetable for
settlement set forth in Parts II and III hereof under
"Settlement Procedure Timetable" with respect to Global
Notes and Certificated Notes, respectively (each such
date fixed for settlement is hereinafter referred to as
a
A-6
"Settlement Date"). If procedures A and B of the
applicable Settlement Procedures with respect to a
particular offer are not completed on or before the
time set forth under the applicable "Settlement
Procedures Timetable", such offer shall not be settled
until the Business Day following the completion of
settlement procedures A and B or such later date as the
purchaser and the Company shall agree.
The foregoing settlement procedures may be modified
with respect to any purchase of Notes by an Agent as
principal if so agreed by the Company and such Agent.
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to change the interest
rate or any other variable term on any Notes being sold
by the Company, the Company will promptly advise the
Agents and the Trustee by facsimile transmission and
the Agents will forthwith suspend solicitation of
offers to purchase such Notes. The Agents will
telephone the Company with recommendations as to the
changed interest rates or other variable terms. At such
time as the Company notifies the Agents and the Trustee
of the new interest rates or other variable terms, the
Agents may resume solicitation of offers to purchase
such Notes. Until such time, only "indications of
interest" may be recorded. Immediately after acceptance
by the Company of an offer to purchase Notes at a new
interest rate or new variable term, the Company, the
Offering Agent and the Trustee shall follow the
procedures set forth under the applicable "Settlement
Procedures".
Suspension of
Solicitation;
Amendment or
Supplement: The Company may instruct the Agents to suspend
solicitation of offers to purchase Notes at any time.
Upon receipt of such instructions, the Agents will
forthwith suspend solicitation of offers to purchase
from the Company until such time as the Company has
advised the Agents that solicitation of offers to
purchase may be resumed. If the Company decides to
amend or supplement the Registration Statement or the
Prospectus (other than to establish or change interest
rates or formulas, maturities, prices or other similar
variable terms with respect to the Notes), it will
promptly advise the Agents and will furnish the Agents
and their counsel with copies of the proposed amendment
or supplement. Copies of such amendment or supplement
will be delivered or mailed to the Agents, their
counsel and the Trustee in quantities which such
parties may reasonably request at the following
respective addresses: [NAMES AND ADDRESSES]. For record
keeping purposes, one copy of each such amendment or
supplement shall also be mailed or telecopied to Xxxxx,
Xxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, Attention: Xxxxxx X. Best,
telecopier: (000) 000-0000.
A-7
In the event that at the time the solicitation of
offers to purchase from the Company is suspended (other
than to establish or change interest rates or formulas,
maturities, prices or other similar variable terms with
respect to the Notes) there shall be any offers to
purchase Notes that have been accepted by the Company
which have not been settled, the Company will promptly
advise the Offering Agent and the Trustee whether such
offers may be settled and whether copies of the
Prospectus as theretofore amended and/or supplemented
as in effect at the time of the suspension may be
delivered in connection with the settlement of such
offers. The Company will have the sole responsibility
for such decision and for any arrangements which may be
made in the event that the Company determines that such
offers may not be settled or that copies of such
Prospectus may not be so delivered.
Delivery of Prospectus
and applicable
Pricing Supplement: A copy of the most recent Prospectus and the applicable
Pricing Supplement, which pursuant to Rule 434 may be
delivered separately from the Prospectus, must
accompany or precede the earlier of (a) the written
confirmation of a sale sent to an investor or other
purchaser or its agent and (b) the delivery of Notes to
an investor or other purchaser or its agent.
Authenticity of
Signatures: The Agents will have no obligation or liability to the
Company or the Trustee in respect of the authenticity
of the signature of any officer, employee or agent of
the Company or the Trustee on any Note.
Documents Incorporated
by Reference: The Company shall supply the Agents with an adequate
supply of all documents incorporated by reference in
the Registration Statement and the Prospectus.
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry form for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and the Trustee to DTC, dated __________, 1997, and a
Certificate Agreement, dated __________, 1997, between the Trustee and DTC, as
amended (the "Certificate Agreement"), and its obligations as a participant in
DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form having
the same Original Issue Date, Specified Currency,
Interest Rate, Default Rate, Interest Payment Dates,
redemption and/or repayment terms, if any, and Stated
Maturity Date (collectively, the "Fixed Rate Terms")
will be represented initially by a single Global Note;
and all Floating Rate Notes issued in book-entry form
having the same Original Issue Date, Specified
Currency, Interest Category, formula for the
calculation of interest (including the Interest Rate
Basis or Bases,
A-8
which may be the CD Rate, the CMT Rate, the Commercial
Paper Rate, the Eleventh District Cost of Funds Rate,
the Federal Funds Rate, LIBOR, the Prime Rate or the
Treasury Rate or any other interest rate basis or
formula, and Spread and/or Spread Multiplier, if any),
Day Count Convention, Initial Interest Rate, Default
Rate, Index Maturity (if applicable), Minimum Interest
Rate, if any, Maximum Interest Rate, if any, redemption
and/or repayment terms, if any, Interest Payment Dates,
Initial Interest Reset Date, Interest Reset Dates and
Stated Maturity Date(collectively, the "Floating Rate
Terms") will be represented initially by a single
Global Note.
For other variable terms with respect to the Fixed Rate
Notes and Floating Rate Notes, see the Prospectus and
the applicable Pricing Supplement.
Owners of beneficial interests in Global Notes will be
entitled to physical delivery of Certificated Notes
equal in principal amount to their respective
beneficial interests only upon certain limited
circumstances described in the Prospectus.
Identification: The Company has arranged with the CUSIP Service Bureau
of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of one series of CUSIP
numbers, which series consists of approximately 900
CUSIP numbers which have been reserved for and relate
to Global Notes and the Company has delivered to each
of the Trustee and DTC such list of such CUSIP numbers.
The Company will assign CUSIP numbers to Global Notes
as described below under Settlement Procedure B. DTC
will notify the CUSIP Service Bureau periodically of
the CUSIP numbers that the Company has assigned to
Global Notes. The Trustee will notify the Company at
any time when fewer than 100 of the reserved CUSIP
numbers remain unassigned to Global Notes, and, if it
deems necessary, the Company will reserve and obtain
additional CUSIP numbers for assignment to Global
Notes. Upon obtaining such additional CUSIP numbers,
the Company will deliver a list of such additional
numbers to the Trustee and DTC. Notes issued in book-
entry form in excess of $200,000,000 (or the equivalent
thereof in one or more foreign or composite currencies)
aggregate principal amount and otherwise required to be
represented by the same Global Note will instead be
represented by two or more Global Notes which shall all
be assigned the same CUSIP number.
Registration: Unless otherwise specified by DTC, each Global Note
will be registered in the name of Cede & Co., as
nominee for DTC, on the register maintained by the
Trustee under the Indenture. The beneficial owner of a
Note issued in book-entry form (i.e., an owner of a
beneficial interest in a Global Note) (or one or more
indirect participants in DTC designated by such owner)
will designate one or more participants in DTC (with
respect to such Note issued in book-entry form, the
"Participants") to act as agent for such beneficial
owner in connection with the book-entry system
maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by such
Participants, a credit balance with respect to such
Note issued in book-entry form in the
A-9
account of such Participants. The ownership interest
of such beneficial owner in such Note issued in book-
entry form will be recorded through the records of such
Participants or through the separate records of such
Participants and one or more indirect participants in
DTC.
Transfers: Transfers of beneficial ownership interests in a Global
Note will be accomplished by book entries made by DTC
and, in turn, by Participants (and in certain cases,
one or more indirect participants in DTC) acting on
behalf of beneficial transferors and transferees of
such Global Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying (a) the
CUSIP numbers of two or more Global Notes outstanding
on such date that represent Global Notes having the
same Fixed Rate Terms or Floating Rate Terms, as the
case may be (other than Original Issue Dates), and for
which interest has been paid to the same date; (b) a
date, occurring at least 30 days after such written
notice is delivered and at least 30 days before the
next Interest Payment Date for the related Notes issued
in book-entry form, on which such Global Notes shall be
exchanged for a single replacement Global Note; and (c)
a new CUSIP number, obtained from the Company, to be
assigned to such replacement Global Note. Upon receipt
of such a notice, DTC will send to its Participants
(including the Trustee) a written reorganization notice
to the effect that such exchange will occur on such
date. Prior to the specified exchange date, the
Trustee will deliver to the CUSIP Service Bureau
written notice setting forth such exchange date and the
new CUSIP number and stating that, as of such exchange
date, the CUSIP numbers of the Global Notes to be
exchanged will no longer be valid. On the specified
exchange date, the Trustee will exchange such Global
Notes for a single Global Note bearing the new CUSIP
number and the CUSIP numbers of the exchanged Notes
will, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Notes to
be exchanged exceed $200,000,000 (or the equivalent
thereof in one or more foreign or composite currencies)
in aggregate principal amount, one replacement Note
will be authenticated and issued to represent each
$200,000,000 (or the equivalent thereof in one or more
foreign or composite currencies) in aggregate principal
amount of the exchanged Global Notes and an additional
Global Note or Notes will be authenticated and issued
to represent any remaining principal amount of such
Global Notes (See "Denominations" below).
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, Notes issued in book-entry form will be
issued in denominations of $1,000 and integral
multiples thereof. Global Notes will not be
denominated in excess of $200,000,000 (or the
equivalent thereof in one or more foreign or composite
currencies) aggregate principal amount. If one or more
Notes are issued in book-entry form in excess of
$200,000,000 (or the equivalent thereof in one or more
foreign or composite currencies) aggregate principal
amount and would, but for the preceding sentence, be
represented by a single
A-10
Global Note, then one Global Note will be issued to
represent each $200,000,000 (or the equivalent thereof
in one or more foreign or composite currencies) in
aggregate principal amount of such Notes issued in
book-entry form and an additional Global Note or Notes
will be issued to represent any remaining aggregate
principal amount of such Note or Notes issued in book-
entry form. In such a case, each of the Global Notes
representing Notes issued in book-entry form shall be
assigned the same CUSIP number.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after each Regular
Record Date, the Trustee will deliver to the Company
and DTC a written notice specifying by CUSIP number the
amount of interest to be paid on each Global Note on
the following Interest Payment Date (other than an
Interest Payment Date coinciding with the Maturity
Date) and the total of such amounts. DTC will confirm
the amount payable on each Global Note on such Interest
Payment Date by reference to the daily bond reports
published by Standard & Poor's Corporation. On such
Interest Payment Date, the Company will pay to the
Trustee in immediately available funds an amount
sufficient to pay the interest then due and owing on
the Global Notes, and upon receipt of such funds from
the Company, the Trustee in turn will pay to DTC such
total amount of interest due on such Global Notes
(other than on the Maturity Date) which is payable in
U.S. dollars, at the times and in the manner set forth
below under "Manner of Payment". The Trustee shall
make payment of that amount of interest due and owing
on any Global Notes that Participants have elected to
receive in foreign or composite currencies directly to
such Participants.
Notice of Interest Rates. Promptly after each Interest
Determination Date or Calculation Date, as the case may
be, for Floating Rate Notes issued in book-entry form,
the Trustee will notify each of Xxxxx'x Investors
Service, Inc. and Standard & Poor's Corporation of the
interest rates determined as of such Interest
Determination Date.
Payments at Maturity. On or about the first Business
Day of each month, the Trustee will deliver to the
Company and DTC a written list of principal, premium,
if any, and interest to be paid on each Global Note
maturing or otherwise becoming due in the following
month. The Trustee, the Company and DTC will confirm
the amounts of such principal, premium, if any, and
interest payments with respect to each such Global Note
on or about the fifth Business Day preceding the
Maturity Date of such Global Note. On the Maturity
Date, the Company will pay to the Trustee in
immediately available funds an amount sufficient to
make the required payments, and upon receipt of such
funds the Trustee in turn will pay to DTC the principal
amount of Global Notes, together with premium, if any,
and interest due on the Maturity Date, which are
payable in U.S. dollars, at the times and in the manner
set forth below under "Manner of Payment". The Trustee
shall make payment of the principal, premium, if any,
and interest to be paid on the Maturity Date of each
Global Note that Participants have elected to receive
in
A-11
foreign or composite currencies directly to such
Participants. Promptly after (i) payment to DTC of the
principal, premium, if any, and interest due on the
Maturity Date of such Global Note which are payable in
U.S. dollars and (ii) payment of the principal,
premium, if any, and interest due on the Maturity Date
of such Global Note to those Participants who have
elected to receive such payments in foreign or
composite currencies, the Trustee will cancel such
Global Note and deliver it to the Company with an
appropriate debit advice. On the first Business Day of
each month, the Trustee will deliver to the Company a
written statement indicating the total principal amount
of outstanding Global Notes as of the close of business
on the immediately preceding Business Day.
Manner of Payment. The total amount of any principal,
premium, if any, and interest due on Global Notes on
any Interest Payment Date or the Maturity Date, as the
case may be, which is payable in U.S. dollars shall be
paid by the Company to the Trustee in funds available
for use by the Trustee no later than 10:00 a.m., New
York City time, on such date. The Company will make
such payment on such Global Notes to an account
specified by the Trustee. Upon receipt of such funds,
the Trustee will pay by separate wire transfer (using
Fedwire message entry instructions in a form previously
specified by DTC) to an account at the Federal Reserve
Bank of New York previously specified by DTC, in funds
available for immediate use by DTC, each payment in
U.S. dollars of principal, premium, if any, and
interest due on Global Notes on such date. Thereafter
on such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in
funds available for immediate use to the respective
Participants in whose names the beneficial interests in
such Global Notes are recorded in the book-entry system
maintained by DTC. Neither the Company nor the Trustee
shall have any responsibility or liability for the
payment in U.S. dollars by DTC of the principal of, or
premium, if any, or interest on, the Global Notes. The
Trustee shall make all payments of principal, premium,
if any, and interest on each Global Note that
Participants have elected to receive in foreign or
composite currencies directly to such Participants.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Global Note will be determined and
withheld by the Participant, indirect participant in
DTC or other Person responsible for forwarding payments
and materials directly to the beneficial owner of such
Global Note.
Settlement
Procedures: Settlement Procedures with regard to each Note in book-
entry form sold by an Agent, as agent of the Company,
or purchased by an Agent, as principal, will be as
follows:
A. The Offering Agent will advise the Company by
telephone, confirmed by facsimile, of the following
settlement information:
A-12
1. Principal amount, Authorized Denomination, and
Specified Currency.
2. Exchange Rate Agent, if any.
3. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is being
issued with Original Issue
Discount and, if so, the terms
thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread Multiplier,
if any.
(v) Initial Interest Reset Date or
Interest Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum Interest
Rates, if any.
(ix) Day Count Convention.
(viii) Calculation Agent.
4. Price to public, if any, of such Note (or
whether such Note is being offered at varying
prices relating to prevailing market prices at
time of resale as determined by the Offering
Agent).
5. Trade Date.
6. Settlement Date (Original Issue Date).
7. Stated Maturity Date.
8. Redemption provisions, if any.
9. Repayment provisions, if any.
A-13
10. Default Rate, if any.
11. Net proceeds to the Company.
12. The Offering Agent's discount or commission.
13. Whether such Note is being sold to the Offering
Agent as principal or to an investor or other
purchaser through the Offering Agent acting as
agent for the Company.
14. Such other information specified with respect
to such Note (whether by Addendum or
otherwise).
B. The Company will assign a CUSIP number to the
Global Note representing such Note and then advise
the Trustee by facsimile transmission or other
electronic transmission of the above settlement
information received from the Offering Agent, such
CUSIP number and the name of the Offering Agent.
The Company will also advise the Offering Agent of
the CUSIP number assigned to the Global Note.
C. The Trustee will communicate to DTC and the
Offering Agent through DTC's Participant Terminal
System a pending deposit message specifying the
following settlement information:
1. The information set forth in the Settlement
Procedure A.
2. Identification numbers of the participant
accounts maintained by DTC on behalf of the
Trustee and the Offering Agent.
3. Identification of the Global Note as a Fixed
Rate Global Note or Floating Rate Global Note.
4. Initial Interest Payment Date for such Note,
number of days by which such date succeeds the
related record date for DTC purposes (or, in
the case of Floating Rate Notes which reset
daily or weekly, the date five calendar days
preceding the Interest Payment Date) and, if
then calculable, the amount of interest payable
on such Interest Payment Date (which amount
shall have been confirmed by the Trustee).
5. CUSIP number of the Global Note representing
such Note.
6. Whether such Global Note represents any other
Notes issued or to be issued in book-entry
form.
DTC will arrange for each pending deposit message
described above to be transmitted to Standard &
Poor's Corporation,
A-14
which will use the information in the message to
include certain terms of the related Global Note in
the appropriate daily bond report published by
Standard & Poor's Corporation.
D. The Trustee will complete and authenticate the
Global Note representing such Note.
E. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
F. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to the
Trustee's participant account and credit such Note
to the participant account of the Offering Agent
maintained by DTC and (ii) to debit the settlement
account of the Offering Agent and credit the
settlement account of the Trustee maintained by
DTC, in an amount equal to the price of such Note
less such Offering Agent's discount or underwriting
commission, as applicable. Any entry of such a
deliver order shall be deemed to constitute a
representation and warranty by the Trustee to DTC
that (i) the Global Note representing such Note has
been issued and authenticated and (ii) the Trustee
is holding such Global Note pursuant to the
Certificate Agreement.
G. In the case of Notes in book-entry form sold
through the Offering Agent, as agent, the Offering
Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC
(i) to debit such Note to the Offering Agent's
participant account and credit such Note to the
participant account of the Participants maintained
by DTC and (ii) to debit the settlement accounts of
such Participants and credit the settlement account
of the Offering Agent maintained by DTC in an
amount equal to the initial public offering 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.
I. Upon receipt, the Trustee will pay the Company, by
wire transfer of immediately available funds to an
account specified by the Company to the Trustee
from time to time, the amount transferred to the
Trustee in accordance with Settlement Procedure F.
J. The Trustee will send a copy of the Global Note by
first class mail to the Company together with a
statement setting forth the principal amount of
Notes Outstanding as of the related Settlement Date
after giving effect to such transaction and all
other offers to purchase Notes of which the Company
has advised the Trustee but which have not yet been
settled.
A-15
K. If such Note was sold through the Offering Agent,
as agent, the Offering Agent will confirm the
purchase of such Note to the investor or other
purchaser either by transmitting to the Participant
with respect to such Note a confirmation order
through DTC's Participant Terminal System or by
mailing a written confirmation to such investor or
other purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by the Company,
Settlement Procedures A through K set forth above shall
be completed as soon as possible following the trade
but not later than the respective times (New York City
time) set forth below:
Settlement
Procedure Time
---------- ----
A 11:00 a.m. on the trade date or within one
hour following the trade
B 12:00 noon on the trade date or within one
hour following the trade
C No later than the close of business on the
trade date
D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement Date
F-G No later than 2:00 p.m. on Settlement Date
H 4:00 p.m. on Settlement Date
I-J 5:00 p.m. on 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 Note issued in book-entry form is
rescheduled or canceled, the Trustee will deliver to
DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than
5:00 p.m., New York City time, on the Business Day
immediately preceding the scheduled Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Note issued in book-entry form
pursuant to Settlement Procedure F, the Trustee may
deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal message
instructing DTC to debit such Note to the participant
account of the Trustee maintained at DTC. DTC will
process the withdrawal message, provided that such
participant account contains a principal amount of the
Global Note representing such Note that is at least
equal to the principal amount to be debited. If
withdrawal messages are processed with respect to all
the Notes represented by a Global Note, the Trustee
will xxxx such Global Note "canceled", make appropriate
entries in its records and send certification of
destruction of such canceled Global Note to the
Company. The CUSIP number assigned to such Global Note
shall, in accordance with CUSIP
A-16
Service Bureau procedures, be canceled and not
immediately reassigned. If withdrawal messages are
processed with respect to a portion of the Notes
represented by a Global Note, the Trustee will exchange
such Global Note for two Global Notes, one of which
shall represent the Global Notes for which withdrawal
messages are processed and shall be canceled
immediately after issuance and the other of which shall
represent the other Notes previously represented by the
surrendered Global Note and shall bear the CUSIP number
of the surrendered Global Note.
In the case of any Note in book-entry form sold through
the Offering Agent, as agent, if the purchase price for
any such Note is not timely paid to the Participants
with respect thereto by the beneficial investor or
other purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf of such
investor or other purchaser), such Participants and, in
turn, the related Offering 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, the
Trustee will deliver the withdrawal message and take
the related actions described in the preceding
paragraph. If such failure shall have occurred for any
reason other than default by the applicable Offering
Agent to perform its obligations hereunder or under the
Selling Agency Agreement, the Company will reimburse
such Offering Agent on an equitable basis for its
reasonable loss of the use of funds during the period
when the funds were credited to the account of the
Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Note in book-entry form, 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 a Note that was to
have been represented by a Global Note also
representing other Notes, the Trustee will provide, in
accordance with Settlement Procedure D, for the
authentication and issuance of a Global Note
representing such remaining Notes and will make
appropriate entries in its records.
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, the Certificated Notes will be issued in
denominations of $1,000 and integral multiples thereof.
Payments of Principal,
Premium, if any,
and Interest: Upon presentment and delivery of the Certificated Note,
the Trustee upon receipt of immediately available funds
from the Company will pay the principal of, premium, if
any, and interest on, each Certificated Note on the
Maturity Date in immediately available funds. All
interest payments on a Certificated Note, other than
interest due on the Maturity Date, will be made by
check mailed to the address of the person entitled
thereto as such address shall appear in the Security
Register; provided, however, that Holders of
A-17
$10,000,000 or more in aggregate principal amount of
Certificated Notes (whether having identical or
different terms and provisions) shall be entitled to
receive such interest payments by wire transfer of
immediately available funds if appropriate wire
transfer instructions have been received in writing by
the Trustee not less than 15 calendar days prior to the
applicable Interest Payment Date.
The Trustee will provide monthly to the Company a list
of the principal, premium, if any, and interest to be
paid on Certificated Notes maturing in the next
succeeding month. The Trustee will be responsible for
withholding taxes on interest paid as required by
applicable law.
Certificated Notes presented to the Trustee on the
Maturity Date for payment will be canceled by the
Trustee. All canceled Certificated Notes held by the
Trustee shall be destroyed, and the Trustee shall
furnish to the Company a certificate with respect to
such destruction.
Settlement
Procedures: Settlement Procedures with regard to each Certificated
Note purchased by an Agent, as principal, or through an
Agent, as agent, shall be as follows:
A. The Offering Agent will advise the Company by
telephone, confirmed by facsimile, of the following
Settlement information with regard to each
Certificated Note:
1. Exact name in which the Certificated Note(s) is
to be registered (the "Registered Owner").
2. Exact address or addresses of the Registered
Owner for delivery, notices and payments of
principal, premium, if any, and interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal amount, Authorized Denomination and
Specified Currency.
5. Exchange Rate Agent, if any.
6. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is being
issued with Original Issue
Discount and, if so, the terms
thereof.
(b) Floating Rate Notes:
A-18
(i) Interest Category.
(ii) Interest Rate Basis or Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread Multiplier,
if any.
(v) Initial Interest Reset Date and
Interest Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum
Interest Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
7. Price to public of such Certificated Note (or
whether such Note is being offered at varying
prices relating to prevailing market prices at
time of resale as determined by the Offering
Agent).
8. Trade Date.
9. Settlement Date (Original Issue Date).
10. Stated Maturity Date.
11. Redemption provisions, if any.
12. Repayment provisions, if any.
13. Default Rate, if any.
14. Net proceeds to the Company.
15. The Offering Agent's discount or commission.
16. Whether such Note is being sold to the Offering
Agent as principal or to an investor or other
purchaser through the Offering Agent acting as
agent for the Company.
17. Such other information specified with respect
to such Note (whether by Addendum or
otherwise).
B. After receiving such settlement information from
the Offering Agent, the Company will advise the
Trustee of the above
A-19
settlement information by facsimile transmission
confirmed by telephone. The Company will cause the
Trustee to complete, authenticate and deliver the
Certificated Note.
C. The Trustee will complete the Certificated Note in
the form approved by the Company and the Offering
Agent, and will make three copies thereof (herein
called "Stub 1", "Stub 2" and "Stub 3"):
1. Certificated Note with the Offering Agent's
confirmation, if traded on a principal basis,
or the Offering Agent's customer confirmation,
if traded on an agency basis.
2. Stub 1 for Trustee.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Company.
D. With respect to each trade, the Trustee will
deliver the Certificated Note and Stub 2 thereof to
the Offering Agent at the following applicable
address: [NAMES AND ADDRESSES]. The Trustee will
keep Stub 1. The Offering Agent will acknowledge
receipt of the Certificated Note through a broker's
receipt and will keep Stub 2. Delivery of the
Certificated Note will be made only against such
acknowledgment of receipt. Upon determination that
the Certificated Note has been authorized,
delivered and completed as aforementioned, the
Offering Agent will wire the net proceeds of the
Certificated Note after deduction of its applicable
commission to the Company pursuant to standard wire
instructions given by the Company.
E. In the case of a Certificated Note sold through the
Offering Agent, as agent, the Offering Agent will
deliver such Certificated Note (with the
confirmation) to the purchaser against payment in
immediately available funds.
F. The Trustee will send Stub 3 to the Company.
Settlement
Procedures
Timetable: For offers to purchase Certificated Notes accepted by
the Company, Settlement Procedures A through F set
forth above shall be completed as soon as possible
following the trade but not later than the respective
times (New York City time) set forth below:
Settlement
Procedure Time
---------- ----
A 11:00 a.m. on the trade date or within
one hour following the trade
A-20
B 12:00 noon on the trade date or within one
hour following the trade
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: In the case of Certificated Notes sold through the
Offering Agent, as agent, if an investor or other
purchaser of a Certificated Note from the Company shall
either fail to accept delivery of or make payment for
such Certificated Note on the date fixed for
settlement, the Offering Agent will forthwith notify
the Trustee and the Company by telephone, confirmed in
writing, and return such Certificated Note to the
Trustee.
The Trustee, upon receipt of such Certificated Note
from the Offering Agent, will immediately advise the
Company and the Company will promptly arrange to credit
the account of the Offering Agent in an amount of
immediately available funds equal to the amount
previously paid to the Company by such Offering Agent
in settlement for such Certificated Note. Such credits
will be made on the Settlement Date if possible, and in
any event not later than the Business Day following the
Settlement Date; provided that the Company has received
notice on the same day. If such failure shall have
occurred for any reason other than failure by such
Offering Agent to perform its obligations hereunder or
under the Selling Agency Agreement, the Company will
reimburse such Offering Agent on an equitable basis for
its reasonable loss of the use of funds during the
period when the funds were credited to the account of
the Company. Immediately upon receipt of the
Certificated Note in respect of which the failure
occurred, the Trustee will cancel and destroy such
Certificated Note, make appropriate entries in its
records to reflect the fact that such Certificated Note
was never issued, and accordingly notify in writing the
Company.
A-21
EXHIBIT B
TRIBUNE COMPANY
[Description of Notes]
TERMS AGREEMENT
[November __], 199_
Tribune Company
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Vice President and Treasurer
Subject in all respects to the terms and conditions of the Underwriting
Agreement (the "Agreement") dated __________, 199_, among [NAMES OF AGENTS] and
you, the undersigned agrees to purchase the following Notes of TRIBUNE COMPANY:
Specified Currency:
Aggregate Principal Amount:
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Purchase Price: % of Principal Amount
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
B-1
Other Terms:
Modification, if any, in
the requirements to
deliver the documents
specified in Section 6(b)
of the Agreement:
Period during which additional
Notes may not be sold pursuant
to Section 4(1) of the Agreement:
[PURCHASER]
By:__________________________
Title:
Accepted:
TRIBUNE COMPANY
By:_______________________________
Title:
B-2
