Exhibit 99.1
Execution Copy
THE NEW YORK TIMES COMPANY
$300,000,000
MEDIUM-TERM NOTES, SERIES B
Due More Than 9 Months from Date of Issue
DISTRIBUTION AGREEMENT
September 17, 2002
X.X. XXXXXX SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
Dear Sirs:
The New York Times Company, a New York corporation (the "COMPANY"),
confirms its agreement with each of you with respect to the issue and sale
from time to time by the Company of up to $300,000,000 aggregate initial
public offering price of its Medium-Term Notes, Series B Due More Than 9
Months from Date of Issue (the "NOTES"). The Notes will be issued under an
Indenture dated as of March 29, 1995 as supplemented by the First
Supplemental Indenture dated as of August 21, 1998 and the Second
Supplemental Indenture dated as of July 26, 2002 (the Indenture as so
supplemented, the "INDENTURE") between the Company and JPMorgan Chase Bank
(formerly known as Chemical Bank), as Trustee (the "TRUSTEE"), and will have
the maturities, interest rates, redemption provisions, if any, and other
terms as set forth in supplements to the Basic Prospectus referred to below.
The Company hereby appoints X.X. Xxxxxx Securities Inc. ("JPMORGAN"), Banc
of America Securities LLC ("BANC OF AMERICA") and Banc One Capital Markets, Inc.
("BANC ONE") (individually, an "AGENT" and collectively, the "AGENTS") as its
agents, subject to Section 11, for the purpose of soliciting and receiving
offers to purchase Notes from the Company by others and, on the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, each Agent agrees to use reasonable efforts to
solicit and receive offers to purchase Notes upon terms acceptable to the
Company at such times and in such amounts as the Company shall from time to time
specify. The Company may appoint one or more new agents in accordance with the
provisions of Section 11. In addition, any Agent may also purchase Notes as
principal pursuant to the terms of a terms agreement relating to such sale (a
"TERMS AGREEMENT") in accordance with the provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement (File No. 333-97199), including a
prospectus, relating to the Notes. Such registration statement, including the
exhibits thereto, as amended at the Commencement Date (as hereinafter defined),
is hereinafter referred to as the "REGISTRATION STATEMENT." The Company proposes
to file with the Commission from time to time, pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), supplements to the
prospectus included in the Registration Statement that will describe certain
terms of the Notes. The prospectus in the form in which it appears in the
Registration Statement is hereinafter referred to as the "BASIC PROSPECTUS." The
term "PROSPECTUS" means the Basic Prospectus together with the prospectus
supplement or supplements (each a "PROSPECTUS SUPPLEMENT") specifically relating
to Notes, as filed with, or transmitted for filing to, the Commission pursuant
to Rule 424. As used herein, the terms "BASIC PROSPECTUS" and "PROSPECTUS" shall
include in each case the documents, if any, incorporated by reference therein.
The terms "SUPPLEMENT" and "AMENDMENT" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT") and "AMEND" and "SUPPLEMENT" shall include the filing of such
documents with the Commission.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
and agrees with each Agent as of the Commencement Date, as of each date on which
an Agent solicits offers to purchase Notes, as of each date on which the Company
accepts an offer to purchase Notes (including any purchase by an Agent pursuant
to a Terms Agreement), as of each date the Company issues and delivers Notes and
as of each date the Registration Statement or the Basic Prospectus is amended or
supplemented, as follows (it being understood that such representations,
warranties and agreements shall be deemed to relate to the Registration
Statement, the Basic Prospectus and the Prospectus, each as amended or
supplemented to each such date):
(a) The Registration Statement has been filed with the Commission
and has become effective; no stop order suspending the effectiveness of
the Registration Statement is in effect, and, to the knowledge of the
Company, no proceedings for such purpose are pending before or threatened
by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder,
(ii) each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or supplemented,
if applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply and, as amended or
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supplemented, if applicable, will comply in all material respects with
the Securities Act and the applicable rules and regulations of
the Commission thereunder and (iv) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading,
except that (A) the representations and warranties set forth in
this paragraph do not apply (1) to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to an Agent furnished to the Company in writing by such Agent
expressly for use therein or (2) to that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT"), of the Trustee and (B) the representations and
warranties set forth in clauses 1 (b)(iii) and 1 (b)(iv) above, when
made as of the Commencement Date or as of any date on which an Agent
solicits offers to purchase Notes or on which the Company accepts an
offer to purchase Notes, shall be deemed not to cover information
concerning an offering of particular Notes to the extent such
information will be set forth in a supplement to the Basic Prospectus.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of New York, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except where the failure to
be so qualified would not have a material adverse effect on the Company
and its subsidiaries taken as a whole.
(d) Each subsidiary of the Company that in accordance with generally
accepted accounting principles is consolidated with the Company in the
Company's consolidated financial statements AND that generated 7% or more
of the revenues or held 7% or more of the assets, of the Company and its
consolidated subsidiaries for or at the end of the most recently completed
fiscal year of the Company for which an Annual Report on Form 10-K or
proxy statement of the Company containing audited financial results has
been filed with the Commission (each, a "Significant Subsidiary") is set
forth on Schedule 1 attached hereto and has been duly incorporated or
formed and is an existing corporation or other legal entity and, to the
extent applicable, is in good standing under the laws of the jurisdiction
of its incorporation, with corporate or other applicable power and
authority to own its properties and conduct its business as described in
the Prospectus; and each Significant Subsidiary of the Company is duly
qualified to do business as a foreign corporation or other legal entity
and, and to the extent applicable, is in good standing, in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except where the failure to
be so qualified would not have a material
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adverse effect on the Company and its subsidiaries taken as a whole;
all of the issued and outstanding capital stock or other equity interests
of each Significant Subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and the capital stock
or other equity interests of each Significant Subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens and
encumbrances.
(e) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(f) The Notes have been duly authorized; and when the Notes are
authenticated by the Trustee and delivered and paid for pursuant to any
applicable Terms Agreement on the Closing Date (as defined below), such
Notes will have been duly executed, authenticated, issued and delivered
and will conform in all material respects to the description thereof
contained in the Prospectus, and such Notes will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(g) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement and any
applicable Terms Agreement in connection with the issuance and sale of the
Notes by the Company, except such as have been obtained and made under the
Act and the Trust Indenture Act and such as may be required under state
(or foreign) securities laws and except such which the failure to obtain
or make would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(h) The execution, delivery and performance of the Indenture, this
Agreement and any applicable Terms Agreement and the issuance and sale of
the Notes and compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any Significant Subsidiary or any of
their properties, or any agreement or instrument to which the Company or
any Significant Subsidiary is a party or by which the Company or any
Significant Subsidiary is bound or to which any of the properties of the
Company or any Significant Subsidiary is subject, or the charter or
by-laws (or other applicable constituent documents) of the Company or any
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Significant Subsidiary except (i) that any rights to indemnity and
contribution herein may be limited by federal and state securities laws
and public policy considerations and (ii) for such breaches, violations
and defaults as would not have a material adverse effect on the Company
and its subsidiaries taken as a whole; and the Company has full corporate
power and authority to authorize, issue and sell the Notes as contemplated
by this Agreement and any applicable Terms Agreement.
(i) Each of this Agreement and any applicable Terms Agreement has
been duly authorized, executed and delivered by the Company.
(j) Except as disclosed in the Prospectus, the Company and its
Significant Subsidiaries have good title to all real properties and all
other properties and assets owned by them that are material to the Company
and its subsidiaries taken as a whole, in each case free from liens and
encumbrances that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them; and except as
disclosed in the Prospectus, the Company and its Significant Subsidiaries
hold any leased real or personal property that are material to the Company
and its subsidiaries taken as a whole, under valid and enforceable leases
with no exceptions that would materially interfere with the use made or to
be made thereof by them.
(k) The Company and the Significant Subsidiaries possess all
certificates, authorities or permits issued by appropriate governmental
agencies or bodies that are material to the Company and its subsidiaries
taken as a whole and have not received any notice of proceedings relating
to the revocation or modification of any such certificate, authority or
permit that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(l) To the knowledge of the Company, except as disclosed in the
Prospectus, no labor dispute with the employees of the Company or any
subsidiary exists or is imminent that might have a material adverse effect
on the Company and its subsidiaries taken as a whole.
(m) The Company and the Significant Subsidiaries own, possess,
license or can acquire on reasonable terms, all trademarks, trade names
and other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") that are material to the Company and its
subsidiaries taken as a whole and have not received any notice of
infringement of or conflict with asserted rights of others with respect to
any of such intellectual property rights that, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
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aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(n) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), or to the knowledge of the Company
is liable for any off-site disposal or contamination pursuant to any
environmental laws, in each case which violations, contaminations or
liabilities would individually or in the aggregate have a material adverse
effect on the Company and its subsidiaries taken as a whole; and the
Company is not aware of any pending investigation which might lead to such
a claim.
(o) Except as disclosed in the Prospectus (and except for pending or
threatened libel suits in which adverse determinations are unlikely),
there are no pending actions, suits or proceedings against or affecting
the Company, any of its subsidiaries or any of their respective properties
that, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse effect on
the Company and its subsidiaries taken as a whole, or would materially and
adversely affect the ability of the Company to perform its obligations
under the Indenture, the Terms Agreement (including the provisions of this
Agreement), or which are otherwise materially adverse in the context of
the sale of the Notes; and, to the Company's knowledge, no such actions,
suits or proceedings are threatened or contemplated.
(p) The financial statements included in the Registration Statement
and Prospectus present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries as of the dates
shown and their results of operations and cash flows for the periods
shown, subject in the case of interim financial statements to normal
recurring year-end adjustments, and, except as otherwise disclosed in the
Prospectus, such financial statements have been prepared in conformity
with the generally accepted accounting principles in the United States
applied on a consistent basis; and any schedules included in the
Registration Statement present fairly the information required to be
stated therein.
(q) Except as disclosed in the Prospectus, since the date of the
latest financial statements included in the Prospectus, there has been no
material adverse change, nor any development or event reasonably likely to
result in a prospective material adverse change, in the financial
condition, business, properties or results of operations of the Company
and its subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the Prospectus and except
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for regular quarterly cash dividends, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(r) The Company is not and, after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940.
2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) SOLICITATIONS AS AGENT. In connection with an Agent's actions as
agent hereunder, such Agent agrees to use reasonable efforts to solicit
offers to purchase Notes upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently,
the solicitation of offers to purchase Notes. Upon receipt of at least one
business day's prior notice from the Company, the Agents will forthwith
suspend solicitations of offers to purchase Notes from the Company until
such time as the Company has advised the Agents that such solicitation may
be resumed. While such solicitation is suspended, the Company shall not be
required to deliver any certificates, opinions or letters in accordance
with Sections 5(a), 5(b) and 5(c); PROVIDED, HOWEVER, that if the
Registration Statement or Prospectus is amended or supplemented during the
period of suspension (other than by an amendment or supplement providing
solely for a change in the interest rates, redemption provisions,
amortization schedules or maturities offered on the Notes or for a change
the Agents deem to be immaterial), no Agent shall be required to resume
soliciting offers to purchase Notes until the Company has delivered such
certificates, opinions and letters as such Agent may request.
The Company agrees to pay to each Agent, as consideration for the
sale of each Note resulting from a solicitation made or an offer to
purchase received by such Agent, a commission in the form of a discount
from the purchase price of such Note (unless otherwise agreed upon between
the applicable Agent and the Company) equal to the percentage set forth
below of the purchase price of such Note:
COMMISSION
TERM RATE
------------------------------------- ------------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
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From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to less than 30 years .750%
From 30 years and beyond To be negotiated
Each Agent shall communicate to the Company, orally or in writing,
each offer to purchase Notes received by such Agent as agent that in its
judgment should be considered by the Company. The Company shall have the
sole right to accept offers to purchase Notes and may reject any offer in
whole or in part. Each Agent shall have the right to reject any offer to
purchase Notes that it considers to be unacceptable, and any such
rejection shall not be deemed a breach of its agreements contained herein.
The procedural details relating to the issue and delivery of Notes sold by
the Agents as agents and the payment therefor shall be as set forth in the
Administrative Procedures (as hereinafter defined).
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this Agreement. In
connection with each such sale, the Company will enter into a Terms
Agreement that will provide for the sale of such Notes to and the purchase
thereof by such Agent. Each Terms Agreement will take the form of either
(i) a written agreement between such Agent and the Company, which may be
substantially in the form of Exhibit A hereto (a "WRITTEN TERMS
AGREEMENT"), or (ii) an oral agreement between such Agent and the Company
confirmed in writing by such Agent to the Company in the form of Exhibit A
hereto.
An Agent's commitment to purchase Notes pursuant to a Terms
Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall
be subject to the terms and conditions herein set forth. Each Terms
Agreement shall specify the principal amount of Notes to be purchased by
such Agent pursuant thereto, the maturity date of such Notes, the price to
be paid to the Company for such Notes, the interest rate and interest rate
formula, if any, applicable to such Notes and any other terms of such
Notes. Each such Terms Agreement may also specify any requirements for
officers' certificates, opinions of counsel and letters from the
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independent public accountants of the Company pursuant to Section 4
hereof. A Terms Agreement may also specify certain provisions relating to
the reoffering of such Notes by such Agent.
Each Terms Agreement shall specify the time and place of delivery of
and payment for such Notes. Unless otherwise specified in a Terms
Agreement, the procedural details relating to the issue and delivery of
Notes purchased by an Agent as principal and the payment therefor shall be
as set forth in the Administrative Procedures. Each date of delivery of
and payment for Notes to be purchased by an Agent pursuant to a Terms
Agreement is referred to herein as a "SETTLEMENT DATE."
Unless otherwise specified in a Terms Agreement, if an Agent is
purchasing Notes as principal such Agent may resell such Notes to other
dealers. Any such sales may be at a discount, which shall not exceed the
amount set forth in the Prospectus Supplement relating to such Notes.
(c) ADMINISTRATIVE PROCEDURES. The Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (attached
hereto as Exhibit B) (the "ADMINISTRATIVE PROCEDURES"), as amended from
time to time. The Administrative Procedures may be amended only by written
agreement of the Company and the Agents.
(d) DELIVERY. The documents required to be delivered by Section 4 of
this Agreement as a condition precedent to each Agent's obligation to
begin soliciting offers to purchase Notes as an agent of the Company shall
be delivered at the office of Xxxxxxxx and Xxxxxxxx, counsel for the
Agents, not later than 5:00 p.m., New York City time, on the date hereof,
or at such other time and/or place as the Agents and the Company may agree
upon in writing, but in no event later than the day prior to the earlier
of (i) the date on which the Agents begin soliciting offers to purchase
Notes and (ii) the first date on which the Company accepts any offer by an
Agent to purchase Notes pursuant to a Terms Agreement. The date of
delivery of such documents is referred to herein as the "COMMENCEMENT
DATE."
(e) OBLIGATIONS SEVERAL. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
3. AGREEMENTS. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes pursuant
to this Agreement or any Terms Agreement, the Company will not file any
Prospectus Supplement relating to the Notes or any amendment to the
Registration Statement unless the Company has previously furnished to the
Agents copies thereof for their review and will not file any such proposed
supplement or amendment to which the Agents reasonably object; PROVIDED,
HOWEVER, that (i) the foregoing
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requirement shall not apply to any of the Company's periodic filings with
the Commission required to be filed pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act, copies of which filings, in the case of
quarterly reports on Form 10-Q and annual reports on Form 10-K, the
Company will cause to be delivered to the Agents promptly after being
transmitted for filing with the Commission and (ii) any Prospectus
Supplement that merely sets forth the terms or a description of particular
Notes (each a "PRICING SUPPLEMENT") shall only be reviewed and approved
by the Agent or Agents offering such Notes. Subject to the foregoing
sentence, the Company will promptly cause each Prospectus Supplement to
be filed with or transmitted for filing to the Commission in accordance
with Rule 424(b) under the Securities Act. The Company will promptly
advise the Agents (i) of the filing of any amendment or supplement to the
Basic Prospectus (except that notice of the filing of an amendment or
supplement to the Basic Prospectus that merely sets forth the terms or a
description of particular Notes shall only be given to the Agent or Agents
offering such Notes), (ii) of the filing and effectiveness of any
amendment to the Registration Statement, (iii) of any request by
the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Basic Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company will use its reasonable efforts to prevent the issuance of any
such stop order or notice of suspension of qualification and, if issued,
to obtain as soon as possible the withdrawal thereof. If the Basic
Prospectus is amended or supplemented as a result of the filing under the
Exchange Act of any document incorporated by reference in the Prospectus,
no Agent shall be obligated to solicit offers to purchase Notes so long as
it is not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or
condition exists as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact, or
omit to state any material fact necessary to make the statements therein,
in the light of the circumstances when the Prospectus, as then amended or
supplemented, is delivered to a purchaser, not misleading, or if, in the
opinion of the Agents or in the opinion of the Company, it is necessary at
any time to amend or supplement the Prospectus, as then amended or
supplemented, to comply with applicable law, the Company will immediately
notify the Agents by telephone (with confirmation in writing) to suspend
solicitation of offers to purchase Notes and, if so notified by the
Company, the Agents shall forthwith suspend such solicitation and cease
using the Prospectus, as then amended or supplemented. If the Company
shall decide to amend or supplement the Registration Statement or
Prospectus, as then amended or
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supplemented, it shall so advise the Agents promptly by telephone (with
confirmation in writing) and, at its expense, shall prepare and,
subject to Section 3(a), cause to be filed promptly with the Commission
an amendment or supplement to the Registration Statement or Prospectus,
as then amended or supplemented, satisfactory in all respects to the
Agents, that will correct such statement or omission or effect such
compliance and will supply such amended or supplemented Prospectus to
the Agents in such quantities as they may reasonably request. If any
documents, certificates, opinions and letters furnished to the Agents
pursuant to Sections 3(f), 5(a), 5(b) and 5(c) in connection with the
preparation and filing of such amendment or supplement are satisfactory
in all respects to the Agents, upon the filing with the Commission of
such amendment or supplement to the Prospectus or upon the
effectiveness of an amendment to the Registration Statement, the Agents
will resume the solicitation of offers to purchase Notes hereunder.
Notwithstanding any other provision of this paragraph, for a period of
45 days after the Settlement Date of any purchase of Notes by an Agent
as principal, if any event described above in this paragraph occurs,
the Company will, at its own expense, forthwith prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to such Agent, will supply such amended or
supplemented Prospectus to such Agent in such quantities as it may
reasonably request and shall furnish to such Agent pursuant to Sections
3(f), 5(a), 5(b) and 5(c) such documents, certificates, opinions and
letters as it may request in connection with the preparation and filing
of such amendment or supplement.
(c) The Company will make generally available to its security
holders and to the Agents as soon as practicable earning statements
that satisfy the provisions of Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder covering
twelve-month periods beginning, in each case, not later than the first
day of the Company's fiscal quarter next following the "effective date"
(as defined in Rule 158 under the Securities Act) of the Registration
Statement with respect to each sale of Notes. If such fiscal quarter is
the last fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days after the
close of the period covered thereby and in all other cases shall be
made available not later than 45 days after the close of the period
covered thereby.
(d) The Company will furnish to each Agent, without charge, a
conformed copy of the Registration Statement, including exhibits and
all amendments thereto, and as many copies of the Prospectus, any
documents incorporated by reference therein and any supplements and
amendments thereto as such Agent may reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Agents shall
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reasonably request and to maintain such qualifications for as long as
the Agents shall reasonably request; provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(f) The Company shall furnish to the Agents such relevant
documents and certificates of officers of the Company relating to the
business, operations and affairs of the Company, the Registration
Statement, the Basic Prospectus, any amendments or supplements thereto,
the Indenture, the Notes, this Agreement, the Administrative
Procedures, any Terms Agreement and the performance by the Company of
its obligations hereunder or thereunder as the Agents may from time to
time reasonably request.
(g) The Company shall notify the Agents promptly in writing of
any downgrading, or of its receipt of any notice of any intended or
potential downgrading or of any review for possible change that does
not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including:
(i) the preparation and filing of the Registration Statement and the
Prospectus and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Notes, (iii) the fees and
disbursements of the Company's counsel and accountants and of the
Trustee and its counsel, (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of
Section 3(e), including filing fees and the fees and disbursements of
counsel for the Agents in connection therewith and in connection with
the preparation of any Blue Sky or Legal Investment Memoranda, (v) the
printing and delivery to the Agents in quantities as hereinabove stated
of copies of the Registration Statement and all amendments thereto and
of the Prospectus and any amendments or supplements thereto, (vi) the
printing and delivery to the Agents of copies of any Blue Sky or Legal
Investment Memoranda, (vii) any fees charged by rating agencies for the
rating of the Notes, (viii) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors and
(ix) the fees and disbursements of counsel for the Agents incurred in
connection with the offering and sale of the Notes, including any
opinions to be rendered by such counsel hereunder, and (x) any
reasonable out-of-pocket expenses incurred by the Agents; PROVIDED that
any advertising expenses incurred by the Agents shall have been
approved by the Company.
(i) During the period beginning the date of any Terms Agreement
and continuing to and including the Settlement Date with respect to
such Terms
-12-
Agreement, the Company will not, without the prior written consent of
each Agent that is party to such Terms Agreement, offer, sell, contract
to sell or otherwise dispose of any debt securities of the Company or
warrants to purchase debt securities of the Company substantially
similar to such Notes (other than (i) the Notes that are to be sold
pursuant to such Terms Agreement, (ii) Notes previously agreed to be
sold by the Company and (iii) commercial paper issued in the ordinary
course of business), except as may otherwise be provided in such Terms
Agreement.
4. CONDITIONS OF THE OBLIGATIONS OF THE AGENTS. Each Agent's obligation
to solicit offers to purchase Notes as agent of the Company, each Agent's
obligation to purchase Notes pursuant to any Terms Agreement and the
obligation of any other purchaser to purchase Notes will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of the Company's officers made in
each certificate furnished pursuant to the provisions hereof and to the
performance and observance by the Company of all covenants and agreements
herein contained on its part to be performed and observed (in the case of an
Agent's obligation to solicit offers to purchase Notes, at the time of such
solicitation, and, in the case of an Agent's or any other purchaser's
obligation to purchase Notes, at the time the Company accepts the offer to
purchase such Notes and at the time of issuance and delivery) and (in each
case) to the following additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus, as amended or supplemented at the time of such solicitation
or at the time such offer to purchase was made, that, in the judgment
of the relevant Agent, is material and adverse and that makes it, in
the judgment of such Agent, impracticable or inadvisable to proceed
with the offering, sale or delivery of the Notes on the terms and in
the manner contemplated by the Prospectus, as so amended or
supplemented;
(ii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board
Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, or the over-the-counter market, (B) suspension of trading of
any securities of or guaranteed by the Company on any exchange or in
any over-the-counter market, (C) declaration of a general moratorium on
commercial banking activities in New York by either Federal or New York
State authorities or (D) any outbreak or escalation of hostilities or
the declaration by the United States of a national emergency or war or
any change in financial markets or any calamity or crisis that, in the
judgment
-13-
of the relevant Agent, is material and adverse and, in the case of any
of the events described in clauses 4(a)(ii)(A) through 4(a)(ii)(D),
such event, singly or together with any other such event, makes it, in
the judgment of such Agent, impracticable or inadvisable to proceed
with the offering, sale or delivery of the Notes on the terms and in
the manner contemplated by the Prospectus, as amended or supplemented
at the time of such solicitation or at the time such offer to purchase
was made; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(A) except, in each case described in Section 4(a)(i),
4(a)(ii) or 4(a)(iii) above, as disclosed to the relevant Agent
in writing by the Company prior to such solicitation or, in the
case of a purchase of Notes, as disclosed to the relevant Agent
before the offer to purchase such Notes was made or (B) unless in
each case described in Section 4(a)(ii) above, the relevant event
shall have occurred and been known to the relevant Agent before
such solicitation or, in the case of a purchase of Notes, before
the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents
shall have received:
(i) The opinion, dated as of such date, of Xxxxxx Xxxxx &
Bockius LLP, outside counsel for the Company, to the effect that:
(A) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of New York, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus as then amended or supplemented;
(B) The Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the
Trust Indenture Act; the Notes have been duly authorized; the
Indenture constitutes and, when executed, authenticated, issued
and delivered in the manner provided in the Indenture and paid
for by the purchasers thereof on the date of such opinion, the
Notes will constitute, valid and legally binding obligations of
the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
-14-
and the Notes, when so issued and delivered and sold will conform
in all material respects to the description thereof contained in
the Prospectus;
(C) To such counsel's knowledge, no consent, approval,
authorization or order of, or filing with, any governmental
agency or body or any court is required for the consummation of
the transactions contemplated by any applicable Written Terms
Agreement (including the provisions of this Agreement) in
connection with the issuance or sale of the Notes by the Company,
except such as have been obtained and made under the Act and the
Trust Indenture Act and such as may be required under state or
foreign securities laws (with respect to which counsel need
express no opinion);
(D) The execution, delivery and performance of the
Indenture and any applicable Written Terms Agreement (including
the provisions of this Agreement) and the issuance and sale of
the Notes and compliance with the terms and provisions thereof
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any applicable
statute, or any rule, regulation or order known to such counsel
of any governmental agency or body or any court having
jurisdiction over the Company or any Significant Subsidiary or
any material portion of their properties (except that any rights
to indemnity and contribution under this Agreement may be limited
by federal and state securities laws and public policy concerns),
or any agreement identified by the Agents (which shall be listed
on a schedule annexed to such opinion), or the charter or by-laws
of the Company, and the Company has full corporate power and
authority to authorize, issue and sell the Notes as contemplated
by any applicable Written Terms Agreement;
(E) The Registration Statement has become effective under
the Act, the Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on the
date specified therein, and, to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceedings
for that purpose have been instituted or are pending or
contemplated under the Act. The registration statement relating
to the Registered Securities, as of its effective date, the
Registration Statement and the Prospectus, as of the date of any
applicable Written Terms Agreement (except, in each case, for
financial statements and schedules as to which counsel need
express no opinion), complied as to form in all material respects
with the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations;
(F) While such counsel is not passing upon and does not
assume responsibility for, and shall not be deemed to have
independently
-15-
verified the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus
(except the statements made under the caption "Description of
Debt Securities", "Description of Notes" and "Tax Considerations"
insofar as they relate to legal matters), nothing has come to the
attention of such counsel in the course of participating with
officers and representatives of the Company in the preparation of
the Registration Statement that would lead such counsel to
believe that, insofar as relevant to the offering of the Notes,
any part of the Registration Statement, when such part became
effective, as of the date of any applicable Written Terms
Agreement or as of the date of such opinion (except for financial
statements and schedules and other financial and statistical data
contained therein, as to which counsel need express no opinion
and, if at the time of rendering such opinion an opinion in the
form required by Section 4(b)(ii) hereof is delivered, then
excluding the documents incorporated by reference into the
Registration Statement, as to which counsel need express no
opinion), contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus, as of the date of any Written Terms
Agreement or as of the date of such opinion (except for financial
statements and schedules and other financial and statistical data
contained therein, as to which counsel need express no opinion
and, if at the time of rendering such opinion an opinion in the
form required by Section 4(b)(ii) hereof is delivered then,
excluding the documents incorporated by reference into the
Registration Statement, as to which counsel need express no
opinion), contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(G) The Distribution Agreement and any applicable Written
Terms Agreement have been duly authorized, executed and delivered
by the Company.
Such opinion may state (i) that it is limited to the laws of New
York and the federal laws of the United States and (ii) that as
to matters of fact it has been rendered in reliance on
certificates of the Company, officers thereof and public
official.
(ii) The opinion, dated as of such date, of Xxxxxxx X. Xxxxxx
XX, Esq., Senior Vice President and General Counsel of the Company, to
the effect that:
(A) Each Significant Subsidiary has been duly incorporated
or formed and is an existing corporation or other legal entity,
and to the extent applicable, is in good standing under the laws
of the state of its
-16-
incorporation or formation, with corporate, or other applicable,
power and authority to own its properties and conduct its
business as described in the Prospectus as then amended or
supplemented;
(B) The execution, delivery and performance of the
Indenture, Distribution Agreement, and any applicable Written
Terms Agreement and the issuance and sale of the Notes and
compliance with the terms and provisions thereof will not result
in a breach or violation of any of the terms and provisions of,
or constitute a default under, any material agreement or
instrument known to such counsel to which the Company or any
Significant Subsidiary is a party or by which the Company or any
Significant Subsidiary is bound or to which any material portion
of the properties of the Company or any Significant Subsidiary is
subject, or the charter or by-laws of any Significant Subsidiary,
except for such breaches, violations and defaults as would not
have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(C) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which
the Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus, as then amended or supplemented, and
are not so described or of any statutes, regulations, contracts
or other documents that are required to be described in the
Registration Statement or the Prospectus, as then amended or
supplemented, or to be filed or incorporated by reference as
exhibits to such Registration Statement that are not described,
filed or incorporated as required;
(D) the Company is not and, after giving effect to the
offering and sale of the Notes and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended;
(E) While such counsel is not passing upon and does not
assume responsibility for, and shall not be deemed to have
independently verified the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the
Prospectus, nothing has come to the attention of counsel in the
course of participating with officers and representatives of the
Company in the preparation of the Registration Statement that
would lead counsel to believe that, insofar as relevant to the
offering of the Notes, any part of the Registration Statement,
when such part became effective, as of the date of any applicable
Terms Agreement or as of the date of such opinion (except for
financial statements and schedules and other financial data
contained therein, as to which such
-17-
counsel need express no opinion), contained any untrue statement
of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of the date of any
applicable Terms Agreement or as of the date of such opinion
(except for financial statements and schedules and other
financial data contained therein, as to which such counsel need
express no opinion), contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; and
(F) Such counsel (1) is of the opinion that each document,
if any, filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus, as then amended or supplemented
(except for financial statements and schedules included therein
as to which such counsel need not express any opinion) complied
when so filed as to form in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, and (2) is of the opinion that the
Registration Statement and Prospectus, as then amended or
supplemented, if applicable (except for financial statements and
schedules included therein as to which such counsel need not
express any opinion) comply as to form in all material respects
with the Securities Act and the applicable rules and regulations
of the Commission thereunder; PROVIDED that in the case of an
opinion delivered on the Commencement Date or pursuant to Section
5(b), the opinion and belief set forth in clause 4(b)(ii)(F)(2)
above shall be deemed not to cover information concerning an
offering of particular Notes to the extent such information will
be set forth in a supplement to the Basic Prospectus.
Such opinion may state that (i) it is limited to the law of New
York, except to the extent that matters contained in paragraph
(i) pertain to the laws of jurisdiction other than New York (with
respect to which counsel may rely, and the opinion may so state,
on opinions of local counsel and/or certificates of public
officials), and (ii) that as to matters of fact it has been
rendered in reliance on certificates of the Company, officers
thereof, and public officials.
(iii) The opinion, dated as of such date, of Xxxxxxxx & Xxxxxxxx,
counsel for the Agents, such opinion, dated the Closing Date, with
respect to the incorporation of the Company, the validity of the Notes,
the Registration Statement, the Prospectus and other related matters as
the Representative may require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
-18-
The opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP described in Section
4(b)(i) above shall be rendered to the Agents at the request of the
Company and shall so state therein.
(c) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents
shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an executive officer
of the Company, to the effect set forth in Sections 1(g) and 4(a)(iii)
and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of such
date in all material respects and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part
to be performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, Deloitte & Touche LLP
independent public accountants, shall have furnished to the relevant
Agents a letter or letters, dated the Commencement Date or such
Settlement Date, as the case may be, in form and substance satisfactory
to such Agents containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Prospectus, as then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate
further information, certificates and documents as they may reasonably
request.
5. ADDITIONAL AGREEMENTS OF THE COMPANY. (a) Each time the Registration
Statement or Prospectus is amended or supplemented (other than by a Pricing
Supplement or an amendment or supplement providing for a change the Agents
deem to be immaterial), the Company will deliver or cause to be delivered
forthwith to each Agent a certificate signed by an executive officer of the
Company, dated the date of such amendment or supplement, as the case may be,
in form reasonably satisfactory to the Agents, of the same tenor as the
certificate referred to in Section 4(c) relating to the Registration
Statement or the Prospectus as amended or supplemented to the time of
delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a), the Company will furnish or cause to be furnished
forthwith to each Agent a written opinion of independent counsel for
the Company, and/or of the General Counsel of the Company. Any such
opinions shall be dated the date of such amendment or supplement, as
the case may be, shall be in a form satisfactory to
-19-
the Agents and shall be of the same tenor as the opinion referred to in
Sections 4(b)(i) and 4(b)(ii), respectively, but modified to relate to
the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion. In lieu of such
opinions, each counsel last furnishing such an opinion to an Agent may
furnish to each Agent a letter to the effect that such Agent may rely
on such last opinion to the same extent as though it were dated the date
of such letter (except that statements in such last opinion will be
deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated
by reference in the Prospectus, the Company shall cause its independent
public accountants forthwith to furnish each Agent with a letter, dated
the date of such amendment or supplement, as the case may be, in form
satisfactory to the Agents, of the same tenor as the letter referred to
in Section 4(d), with regard to the amended or supplemental financial
information included or incorporated by reference in the Registration
Statement or the Prospectus as amended or supplemented to the date of
such letter.
6. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls any Agent
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim, and will reimburse such Agent or person for any legal or
other expenses reasonably incurred by it in connection with investigating or
defending any such action or claim as such expenses are incurred) caused by
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to such
Agent furnished to the Company in writing by such Agent expressly for use
therein.
(b) Each Agent agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to such Agent, but only with reference to
information relating to such Agent furnished to the
-20-
Company in writing by such Agent expressly for use in the Registration
Statement or the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either Section 6(a) or 6(b)
above, such person (the "INDEMNIFIED PARTY") shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING
PARTY") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (iii) the indemnifying
party shall have failed to appoint counsel reasonably satisfactory to
indemnified party. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in
writing by the Agents that are indemnified parties, in the case of
parties indemnified pursuant to Section 6(a) above, and by the Company,
in the case of parties indemnified pursuant to Section 6(b) above. The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying
party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party, unless
-21-
such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in Section
6(a) or 6(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and each Agent on the other hand from the offering of such
Notes or (ii) if the allocation provided by clause 6(d)(i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 6(d)(i)
above but also the relative fault of the Company on the one hand and
each Agent on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities,
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and each Agent on the
other hand in connection with the offering of such Notes shall be
deemed to be in the same respective proportions as the total net
proceeds from the offering of such Notes (before deducting expenses)
received by the Company bear to the total discounts and commissions
received by each Agent in respect thereof. The relative fault of the
Company on the one hand and each Agent on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Company or by such Agent and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. Each Agent's obligation to contribute
pursuant to this Section 6 shall be several in the proportion that the
principal amount of the Notes the sale of which by or through such
Agent gave rise to such losses, claims, damages or liabilities bears to
the aggregate principal amount of the Notes the sale of which by or
through any Agent gave rise to such losses, claims, damages or
liabilities, and not joint.
(e) The Company and the Agents agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by
PRO RATA allocation (even if the Agents were treated as one entity for
such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 6(d).
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in Section 6(d)
shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 6, no Agent shall
be required to contribute any amount in excess of the amount by which
the total price at which
-22-
the Notes referred to in Section 6(d) that were offered and sold to the
public through such Agent exceeds the amount of any damages that such
Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6, representations, warranties and other statements of the
Company, its officers and the Agents set forth in or made pursuant to
this Agreement or any Terms Agreement will remain in full force and
effect regardless of (i) any termination of this Agreement or any such
Terms Agreement, (ii) any investigation made by or on behalf of any
Agent or any person controlling any Agent or by or on behalf of the
Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Notes.
7. POSITION OF THE AGENTS. In acting under this Agreement and in
connection with the sale of any Notes by the Company (other than Notes sold
to an Agent pursuant to a Terms Agreement), each Agent is acting solely as
agent of the Company and does not assume any obligation towards or
relationship of agency or trust with any purchaser of Notes. An Agent shall
make reasonable efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes has been solicited by such Agent
and accepted by the Company, but such Agent shall not have any liability to
the Company in the event any such purchase is not consummated for any reason.
If the Company shall default in its obligations to deliver Notes to a
purchaser whose offer it has accepted, the Company shall hold the relevant
Agent harmless against any loss, claim, damage or liability arising from or
as a result of such default and shall, in particular, pay to such Agent the
commission it would have received had such sale been consummated.
8. TERMINATION. This Agreement may be terminated at any time by the
Company or, as to any Agent, by the Company or such Agent upon the giving of
written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto
accrued or incurred prior to such termination. The termination of this
Agreement shall not require termination of any Terms Agreement, and the
termination of any such Terms Agreement shall not require termination of this
Agreement. If this Agreement is terminated, the provisions of the third
paragraph of Section 2(a), Section 2(e), the last sentence of Section 3(b)
and Sections 3(c), 3(h), 6, 7, 9, 10 and 13 shall survive; PROVIDED that if
at the time of termination an offer to purchase Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of such
Notes has not occurred, the provisions of
-23-
Sections 1, 2(b), 2(c), 3(a), 3(b), 3(d), 3(e), 3(f), 3(g), 3(i), 4 and 5
shall also survive until such delivery has been made.
9. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to X.X. Xxxxxx Securities Inc., will
be mailed, delivered or telefaxed and confirmed to X.X. Xxxxxx Securities
Inc. at 7th Floor, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
Transactions Execution Group (telefax number: 212-834-6702), if sent to Banc
of America Securities LLC or Banc One Capital Markets, Inc., will be mailed,
delivered or telefaxed and confirmed to Banc of America Securities LLC at
Banc of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX
00000, Attention: MTN Desk (telefax number: 704-388-9939) or Banc One Capital
Markets, Inc. at I Bank Xxx Xxxxx, Xxxxx XX0-0000, 0xx Xxxxx, Xxxxxxx, XX
00000, Attention: Investment Grade Securities (telefax number: 312-732-4773)
or, if sent to the Company, will be mailed, delivered or telefaxed and
confirmed to the Company at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: X. Xxxxxxx Xxxxxx, Treasurer (telefax number (000) 000-0000) with
a copy to Xxxxxxx X. Xxxxxx XX, Esq., Senior Vice President, Secretary and
General Counsel (telefax number (000) 000-0000).
10. SUCCESSORS. This Agreement and any Terms Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
11. AMENDMENTS; APPOINTMENT OF NEW AGENTS. (a) This Agreement may be
amended or supplemented if, but only if, such amendment or supplement is in
writing and is signed by the Company and each Agent; PROVIDED that the
Company may from time to time appoint new agents in accordance with
sub-sections (b) and (c) of this Section 11.
(b) The Company may appoint one or more new agents for the
duration of this Agreement or, with regard to a particular tranche of
Notes, one or more new agents for the purposes of that tranche, in
either case upon the terms of this Agreement, PROVIDED that:
(i) any new agent shall have first delivered to the Company an
Agent Accession Letter substantially in the form set out in Part I or
III (as appropriate) of Exhibit C hereto or executed a Terms Agreement
substantially in the form set out in Exhibit A hereto; and
(ii) the Company shall have delivered to such new agent a
Confirmation Letter substantially in the form set out in Part II or IV
(as appropriate) of Exhibit C hereto or executed a Terms Agreement
substantially in the form set out in Exhibit A hereto.
Upon appointment, such new agent shall, subject to the terms of the relevant
Agent Accession Letter and the relevant Confirmation Letter, become a party
to this Agreement,
-24-
vested with all authority, rights, powers, duties and obligations of an Agent
as if originally named as an Agent xxxxxxxxx; PROVIDED that except in the
case of the appointment of a new agent for the duration of the Program,
following the issue of the Notes of the relevant tranche, the relevant new
agent shall have no further such authority, rights, powers, duties or
obligations except such as may have accrued prior to or in connection with
the issue of the relevant Notes.
(c) The Company shall at least three days prior to such
appointment promptly notify the other Agents of any proposed
appointment of a new agent for the duration of the Program and shall
promptly supply to such parties a copy of any Agent Accession Letter
and Confirmation Letter. No such notice shall be required to be given
in the case of an appointment of a new agent for a particular issue of
Notes.
12. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO ANY CHOICE-OF-LAW RULES THEREOF WHICH MIGHT APPLY THE LAWS OF ANY OTHER
JURISDICTION.
14. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
-25-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and you.
Very truly yours,
THE NEW YORK TIMES COMPANY
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Secretary
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Principal
BANC ONE CAPITAL MARKETS, INC.
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
-26-
SCHEDULE 1
SIGNIFICANT SUBSIDIARIES
1. Globe Newspaper Company, Inc., a Massachusetts corporation
2. The New York Times Sales Company, a Massachusetts business trust
3. NYT Broadcast Holdings, LLC, a Delaware limited liability company
4. NYT Capital, Inc., a Delaware corporation
5. NYT Holdings, Inc., an Alabama corporation
6. NYT Management Services, a Massachusetts business trust
7. Worcester Telegram & Gazette Corporation, a Massachusetts corporation
8. New York Times Management Services, a Massachusetts business trust
-27-
EXHIBIT A
THE NEW YORK TIMES COMPANY
MEDIUM-TERM NOTES, SERIES B
TERMS AGREEMENT
___________, 200_
THE NEW YORK TIMES COMPANY
000 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
RE: DISTRIBUTION AGREEMENT DATED SEPTEMBER 17, 2002 (THE
"DISTRIBUTION AGREEMENT")
We agree to purchase your Medium-Term Notes having the following terms:
We agree to purchase, [severally and not jointly,]* the principal
amount of Notes set forth below opposite our names:
PRINCIPAL AMOUNT
NAME OF NOTES
---------------------------------------------------- ----------------
X.X. Xxxxxx Securities Inc.
[Insert syndicate list]* ----------------
Total........................................... $
================
The Notes shall have the following terms:
ALL NOTES: FIXED RATE NOTES: FLOATING RATE NOTES:
Principal amount: Interest rate: Interest rate basis
Purchase price: Interest payment dates: Index maturity:
Price to public: Applicability of Spread:
modified payment
upon acceleration:
--------------
* Delete if the transaction will not be syndicated.
ALL NOTES: FIXED RATE NOTES: FLOATING RATE NOTES:
Settlement date and time: If yes, state issue price: Spread multiplier:
Place of delivery: Initial interest reset date:
Maturity date: Interest reset dates:
Initial accrual period OID: Maximum rate:
Total amount of OID: Minimum rate:
Original yield to maturity: Calculation agent:
Optional repayment date(s): Reporting service:
Designated CMT Telerate page:
Redemption dates: Designated CMT maturity index.
Redemption price(s)
Interest payment dates:
Other terms:
The provisions of Sections 1, 2(b), 2(c), 3 through 6 and 9 through 13
of the
Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if
set forth in full herein.
[If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on such
date, and the aggregate amount of Notes which such defaulting Agent or Agents
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Notes to be purchased on such date, the other Agents
shall be obligated severally in the proportions that the amount of Notes set
forth opposite their respective names above bears to the aggregate amount of
Notes set forth opposite the names of all such non-defaulting Agents, or in such
other proportions as ________may specify, to purchase the Notes which such
defaulting Agent or Agents agreed but failed or refused to purchase on such
date; PROVIDED that in no event shall the amount of Notes that any Agent has
agreed to purchase pursuant to this Agreement be increased pursuant to this
paragraph by an amount in excess of one-ninth of such amount of Notes without
the written consent of such Agent. If on the Settlement Date any Agent or Agents
shall fail or refuse to purchase Notes and the aggregate amount of Notes with
respect to which such default occurs is more than one-tenth of the aggregate
amount of Notes to be purchased on such date, and arrangements satisfactory to
___________and the Company for the purchase of such Notes are not made within 36
hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Agent or the Company. In
A-2
any such case either _______________ or the Company shall have the right to
postpone the Settlement Date but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Agent from
liability in respect of any default of such Agent under this Agreement.]*
This Agreement is also subject to termination on the terms incorporated
by reference herein. If this Agreement is terminated, the provisions of
Sections 3(h), 6, 9, 10 and 13 of the
Distribution Agreement shall survive
for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the
Distribution Agreement will be
required:
-------------------
[NAME OF RELEVANT AGENT(S)]
By:
-------------------------------
Name:
Title:
Accepted:
THE
NEW YORK TIMES COMPANY
By:
-----------------------------
Name:
Title:
--------
* Delete if the transaction will not be syndicated.
A-3
EXHIBIT B
THE
NEW YORK TIMES COMPANY
MEDIUM-TERM NOTES, SERIES B
ADMINISTRATIVE PROCEDURES
---------------------------------
Explained below are the administrative procedures and specific terms of
the offering of Medium-Term Notes (the "NOTES"), on a continuous basis by The
New York Times Company (the "COMPANY") pursuant to the
Distribution
Agreement, dated as of September 17, 2002 (the "
DISTRIBUTION AGREEMENT")
among the Company and X.X. Xxxxxx Securities Inc., Bank of America Securities
LLC and Banc One Capital Markets, Inc. (the "AGENTS"). The Notes will be
issued under an Indenture dated as of March 29, 1995 between the Company and
JPMorgan Chase Bank (formerly known as Chemical Bank) ("JPMORGAN CHASE"), as
trustee (the "TRUSTEE"), as supplemented by the First Supplemental Indenture,
dated as of August 21, 1998 and the Second Supplemental Indenture dated as of
July 26, 2002 (such Indenture, as supplemented, the "INDENTURE"). In the
Distribution Agreement, the Agents have agreed to use reasonable efforts to
solicit purchases of the Notes, and the administrative procedures explained
below will govern the issuance and settlement of any Notes sold through an
Agent, as agent of the Company. An Agent, as principal, may also purchase
Notes for its own account, and if requested by such Agent, the Company and
such Agent will enter into a terms agreement (a "TERMS AGREEMENT"), as
contemplated by the Distribution Agreement. The administrative procedures
explained below will govern the issuance and settlement of any Notes
purchased by an Agent, as principal, unless otherwise specified in the
applicable Terms Agreement.
JPMorgan Chase will be the Trustee, Registrar, Calculation Agent,
Authenticating Agent and Paying Agent for the Notes and will perform the
duties specified herein. Each Note will be represented by either a Global
Security (as defined below) delivered to JPMorgan Chase, as agent for The
Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "BOOK-ENTRY NOTE") or a certificate delivered to the
holder thereof or a person designated by such holder (a "CERTIFICATED NOTE").
Except as set forth in the Indenture, an owner of a Book-Entry Note will not
be entitled to receive a Certificated Note.
Book-Entry Notes, which may be payable only in U.S. dollars, will be
issued in accordance with the administrative procedures set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC'S
operating procedures.
Certificated Notes will be issued in accordance with the administrative
procedures set forth in Part II hereof. Unless otherwise defined herein,
terms defined in the Indenture, the Notes or any prospectus supplement
relating to the Notes shall be used herein as therein defined.
The Company will advise the Agents in writing of the employees of the
Company with whom the Agents are to communicate regarding offers to purchase
Notes and the related settlement details.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, JPMorgan Chase will
perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter
of Representation from the Company and JPMorgan Chase to DTC, dated as of
September 13, 2002, and a Medium-Term Note Certificate Agreement between the
Trustee and DTC, dated as of November 13, 2001 (the "MTN CERTIFICATE
AGREEMENT"), and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"SETTLEMENT" below) for one or more Book-Entry Notes,
the Company will issue a single global security in
fully registered form without coupons (a "GLOBAL
SECURITY") representing up to U.S. $500,000,000
principal amount of all such Notes that have the same
Original Issue Date, Maturity Date and other terms.
Each Global Security will be dated and issued as of
the date of its authentication by the Trustee. Each
Global Security will bear an interest accrual date,
which will be (i) with respect to an original Global
Security (or any portion thereof), its original
issuance date and (ii) with respect to any Global
Security (or any portion thereof) issued subsequently
upon exchange of a Global Security, or in lieu of a
destroyed, lost or stolen Global Security, the most
recent Interest Payment Date to which interest has
been paid or duly provided for on the predecessor
Global Security (or if no such payment or provision
has been made, the original issuance date of the
predecessor Global Security), regardless of the date
of authentication of such subsequently issued Global
Security. Book-Entry Notes may be payable only in
U.S. dollars. No Global Security will represent any
Certificated Note.
Denominations: Book-Entry Notes will be issued in principal amounts
of U.S. $1,000 or any amount in excess thereof that
is an integral multiple of U.S. $1,000. Global
Securities will be denominated in principal amounts
not in excess of U.S. $500,000,000. If one or
B-2
more Book-Entry Notes having an aggregate principal
amount in excess of $500,000,000 would, but for the
preceding sentence, be represented by a single Global
Security, then one Global Security will be issued to
represent each U.S. $500,000,000 principal amount of
such Book-Entry Note or Notes and an additional Global
Security will be issued to represent any remaining
principal amount of such Book-Entry Note or Notes. In
such a case, each of the Global Securities representing
such Book-Entry Note or Notes shall be assigned the same
CUSIP number.
Preparation If any offer to purchase a Book-Entry Note is accepted by
of Pricing or on behalf of the Company, the Company will prepare a
Supplement: pricing supplement (a "PRICING SUPPLEMENT") reflecting
the terms of such Note. The Company (i) will arrange to
file such Pricing Supplement with the Commission in
accordance with the applicable paragraph of Rule 424(b)
under the Act and (ii) will, as soon as possible and in
any event not later than the date on which such Pricing
Supplement is filed with the Commission, deliver the
number of copies of such Pricing Supplement to the
relevant Agent as such Agent shall request.
In each instance that a Pricing Supplement is prepared,
the relevant Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately available funds
in payment for a Book-Entry Note and the authentication
and issuance of the Global Security representing such
Note shall constitute "SETTLEMENT" with respect to such
Note. All offers accepted by the Company will be settled
on the third Business Day next succeeding the date of
acceptance, unless the Company accepts an offer to
purchase Notes after 4:30 p.m. on such date in which case
settlement will occur on the fourth Business Day next
succeeding such date of acceptance, pursuant to the
timetable for settlement set forth below, unless the
Company and the purchaser agree to settlement on another
day, which shall be no earlier than the next Business
Day.
Settlement Settlement Procedures with regard to each Book-Entry Note
Procedures: sold by the Company to or through an Agent (unless
otherwise specified pursuant to a Terms Agreement) shall
be as follows:
B-3
A. The relevant Agent will advise the Company by
telephone that such Note is a Book-Entry Note and of
the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note,
the Interest Rate, Interest Payment Dates,
applicability of of modified payment upon
acceleration (and if applicable, the issue price),
or, in the case of a Floating Rate Book-Entry Note,
the Initial Interest Rate (if known at such time),
Interest Payment Date(s), Interest Payment Period,
Calculation Agent, Interest Rate Basis, Index
Maturity, Initial Interest Reset Date, Interest
Reset Dates, Spread or Spread Multiplier (if any),
Minimum Rate (if any), Maximum Rate (if any),
Reporting Service (if applicable), Designated CMT
Telerate Page (if applicable) and Designated CMT
Maturity Index (if applicable).
4. Redemption or repayment provisions (if any).
5. Settlement date and time (Original Issue Date).
6. Price.
7. Agent's commission (if any) determined as
provided in the Distribution Agreement.
8. Whether the Note is an Original Issue Discount
Note (an "OID NOTE"), and if it is an OID Note, the
total amount of OID, the yield to maturity, the
initial accrual period OID and the applicability of
Modified Payment upon Acceleration (and, if so, the
Issue Price).
9. Whether the Note is an Indexed Note, and if it
is an Indexed Note, the Denominated Currency, the
Indexed Currency or Currencies, the Payment
Currency, the Exchange Rate Agent, the Reference
Dealers, the Face Amount, the Fixed Amount of each
Indexed Currency, the Aggregate Fixed Amount of
each Indexed Currency and the Authorized
Denominations (if other than U.S. dollars).
10. Whether the Note is a Renewable Note, and if it
is a
B-4
Renewable Note, the Initial Maturity Date and the
Final Maturity Date.
11. Whether the Company has the option to extend
the Original Maturity Date of the Note, and, if so,
the Final Maturity Date of such Note.
12. Whether the Company has the option to reset the
Interest Rate, the Spread or the Spread Multiplier
of the Note.
13. Any other applicable terms.
B. The Company will advise JPMorgan Chase by telephone or
electronic transmission (confirmed in writing at any time
on the same date) of the information set forth in
Settlement Procedure "A" above. JPMorgan Chase will then
assign a CUSIP number to the Global Security representing
such Note and will notify the Company and the relevant
Agent of such CUSIP number by telephone as soon as
practicable.
C. JPMorgan Chase will enter a pending deposit message
through DTC's Participant Terminal System, providing the
following settlement information to DTC, the relevant
Agent and Standard & Poor's Corporation:
1. The information set forth in Settlement
Procedure "A".
2. The Initial Interest Payment Date for such Note,
the number of days by which such date succeeds the
related DTC Record Date (which in the case of
Floating Rate Notes which reset daily or weekly,
shall be the date five calendar days immediately
preceding the applicable Interest Payment Date and,
in the case of all other Notes, shall be the Record
Date as defined in the Note) and, if known, the
amount of interest payable on such Initial Interest
Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
4. Whether such Global Security will represent any
other Book-Entry Note (to the extent known at such
time).
B-5
5. Whether such Note is an Amortizing Note (by an
appropriate notation in the comments field of DTC's
Participant Terminal System).
6. The number of participant accounts to be
maintained by DTC on behalf of the relevant Agent
and Chase.
D. The Trustee will complete and authenticate the Global
Security representing such Note.
E. DTC will credit such Note to JPMorgan Chase's
participant account at DTC.
F. JPMorgan Chase will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to (i)
debit such Note to JPMorgan Chase's participant account and
credit such Note to the relevant Agent's participant account
and (ii) debit such Agent's settlement account and credit
JPMorgan Chase's settlement account for an amount equal to
the price of such Note less such Agent's commission (if
any). The entry of such a deliver order shall constitute a
representation and warranty by JPMorgan Chase to DTC that
(a) the Global Security representing such Book-Entry Note
has been issued and authenticated and (b) JPMorgan Chase is
holding such Global Security pursuant to the MTN Certificate
Agreement.
G. Unless the relevant Agent is the end purchaser of such
Note, such Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC (i) to
debit such Note to such Agent's participant account and
credit such Note to the participant accounts of the
Participants with respect to such Note and (ii) to debit the
settlement accounts of such Participants and credit the
settlement account of such Agent for an amount equal to the
price of such Note.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be
settled in accordance with SDFS operating procedures in
effect on the settlement date.
I. JPMorgan Chase will credit to the account of the Company
maintained at JPMorgan Chase, in immediately available funds
the amount transferred to JPMorgan Chase in accordance with
Settlement Procedure "F".
B-6
J. Unless the relevant Agent is the end purchaser of such
Note, such Agent will confirm the purchase of such Note to
the purchaser either by transmitting to the Participants
with respect to such Note a confirmation order or orders
through DTC's institutional delivery system or by mailing a
written confirmation to such purchaser.
K. Monthly, JPMorgan Chase will send to the Company a
statement setting forth the principal amount of Notes
outstanding as of that date under the Indenture and setting
forth a brief description of any sales of which the Company
has advised JPMorgan Chase that have not yet been settled.
Settlement For sales by the Company of Book-Entry Notes to or
Procedures through an Agent (unless otherwise specified pursuant
Timetable: to a Terms Agreement) for settlement on the first
Business Day after the sale date, Settlement Procedures "A"
through "J" set forth above shall be completed as soon as
possible but not later than the respective times in New York
City set forth below:
Settlement
PROCEDURE TIME
---------- ----
A 11:00 a.m. on sale date
B 12:00 Noon on sale date
C 2:00 p.m. on sale date
D 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I-J 5:00 p.m. on settlement date
If a sale is to be settled more than a Business Day after
the sale date, Settlement Procedures "A", "B" and "C" shall
be completed as soon as practicable but no later than 11:00
A.M., 12:00 Noon and 2:00 P.M., respectively, on the first
Business Day after the sale date. If the Initial Interest
Rate for a Floating Rate Book- Entry Note has not been
determined at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined but no
later than 12:00 Noon and 2:00 P.M., respectively, on the
first Business Day before the settlement date. Settlement
Procedure "H" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect
on the settlement date.
B-7
If settlement of a Book-Entry Note is rescheduled or
cancelled, JPMorgan Chase, after receiving notice from the
Company or the relevant Agent, will deliver to DTC, through
DTC's Participant Terminal System, a cancellation message to
such effect by no later than 2:00 p.m. on the Business Day
immediately preceding the scheduled settlement date.
Failure If JPMorgan Chase fails to enter an SDFS deliver
to Settle: order with respect to a Book-Entry Note pursuant to
Settlement Procedure "F", JPMorgan Chase may deliver to DTC,
through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to debit
such Note to JPMorgan Chase's participant account, provided
that JPMorgan Chase's participant account contains a
principal amount of the Global Security representing such
Note that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with respect
to all the Book-Entry Notes represented by a Global
Security, JPMorgan Chase will mark such Global Security
"cancelled," make appropriate entries in the Trustee's
records and send such cancelled Global Security to the
Company. The CUSIP number assigned to such Global Security
shall, in accordance with the procedures of the CUSIP
Service Bureau of Standard & Poor's Corporation, be
cancelled and not immediately reassigned. If a withdrawal
message is processed with respect to one or more, but not
all, of the Book-Entry Notes represented by a Global
Security, JPMorgan Chase will exchange such Global Security
for two Global Securities, one of which shall represent such
Book-Entry Note or Notes and shall be cancelled immediately
after issuance and the other of which shall represent the
remaining Book-Entry Notes previously represented by the
surrendered Global Security and shall bear the CUSIP number
of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the relevant
Agent may enter SDFS deliver orders through DTC's
Participant Terminal System reversing the orders entered
pursuant to Settlement Procedures "F" and "G", respectively.
Thereafter, JPMorgan Chase will deliver the withdrawal
message and take the related actions described in the
preceding paragraph.
B-8
Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Note, DTC may take any
actions in accordance with its SDFS operating procedures
then in effect.
In the event of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will provide,
in accordance with Settlement Procedures "D" and "F", for
the authentication and issuance of a Global Security
representing the Book-Entry Notes to be represented by such
Global Security and will make appropriate entries in its
records.
B-9
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as Registrar in connection with the Certificated
Notes.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by the Trustee. Each
Certificated Note will bear an Original Issue Date,
which will be (i) with respect to an original
Certificated Note (or any portion thereof), its
original issuance date (which will be the settlement
date) and (ii) with respect to any Certificated Note
(or portion thereof) issued subsequently upon
transfer or exchange of a Certificated Note or in
lieu of a destroyed, lost or stolen Certificated
Note, the original issuance date of the predecessor
Certificated Note, regardless of the date of
authentication of such subsequently issued
Certificated Note.
Preparation If any offer to purchase a Certificated Note is
of Pricing accepted by or on behalf of the Company, the Company
Supplement: will prepare a Pricing Supplement reflecting the
terms of such Note. The Company (i) will arrange to file
such Pricing Supplement with the Commission in accordance
with the applicable paragraph of Rule 424(b) under the Act
and (ii) will, as soon as possible and in any event not
later than the date on which such Pricing Supplement is
filed with the Commission, deliver the number of copies of
such Pricing Supplement to the relevant Agent as such Agent
shall request.
In each instance that a Pricing Supplement is prepared, the
relevant Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are attached
(other than those retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the relevant Agent and such Agent's
delivery of such Note against receipt of immediately
available funds shall constitute "SETTLEMENT" with
respect to such Note. All offers accepted by the
Company will be settled on the third Business Day
next succeeding the date of acceptance, unless the
Company accepts an offer to purchase Notes after 4:30
p.m. on such date in which case settlement will occur
on the fourth Business Day next succeeding such date
of acceptance, pursuant to the timetable for
settlement set forth below, unless the Company and
the purchaser agree to settlement on another date,
which date shall be no earlier than the next Business
Day.
B-10
Settlement Settlement Procedures with regard to each Certificated
Procedures: Note sold by the Company to or through an Agent (unless
otherwise specified pursuant to a Terms Agreement) shall
be as follows:
A. The relevant Agent will advise the Company by
telephone that such Note is a Certificated Note and of
the following settlement information:
1. Name in which such Note is to be registered
("REGISTERED OWNER").
2. Address of the Registered Owner and address
for payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated Note,
the Interest Rate, Interest Payment Dates,
applicability of of modified payment upon
acceleration (and if applicable, the issue price),
or, in the case of a Floating Rate Certificated
Note, the Initial Interest Rate (if known at such
time), Interest Payment Date(s), Calculation Agent,
Interest Rate Basis, Index Maturity, Initial
Interest Reset Date, Interest Reset Dates, Spread
or Spread Multiplier (if any), Minimum Rate (if
any), Maximum Rate (if any), Reporting Service (if
applicable), Designated CMT Telerate Page (if
applicable) and Designated CMT Maturity Index (if
applicable).
7. Redemption or repayment provisions (if any).
8. Settlement date and time (Original Issue Date).
9. Price.
10. Agent's commission (if any) determined as
provided in the Distribution Agreement.
11. Denominations.
B-11
12. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the yield to
maturity, the initial accrual period OID and the
applicability of Modified Payment upon Acceleration
(and if so, the Issue Price).
13. Whether the Note is an Indexed Note, and if it
is an Indexed Note, the Denominated Currency, the
Indexed Currency or Currencies, the Payment
Currency, the Exchange Rate Agent, the Reference
Dealers, the Face Amount, the Fixed Amount of each
Indexed Currency, the Aggregate Fixed Amount of
each Indexed Currency and the Authorized
Denominations (if other than U.S. dollars).
14. Whether the Note is a Renewable Note, and if it
is a Renewable Note, the Initial Maturity Date and
the Final Maturity Date.
15. Whether the Company has the option to extend
the Original Maturity Date of the Note, and, if so,
the Final Maturity Date of such Note.
16. Whether the Company has the option to reset the
Interest Rate, the Spread or the Spread Multiplier
of the Note.
17. Any other applicable terms.
B. The Company will advise the Trustee by telephone or
electronic transmission (confirmed in writing at any time
on the same date) of the information set forth in
Settlement Procedure "A" above.
C. The Company will have delivered to the Trustee a
pre-printed four-ply packet for such Note, which packet
will contain the following documents in forms that have
been approved by the Company, the relevant Agent and the
Trustee:
1. Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
B-12
D. The Trustee will complete such Note and authenticate
such Note and deliver it (with the confirmation) and
Stubs One and Two to the relevant Agent, and such Agent
will acknowledge receipt of the Note by stamping or
otherwise marking Stub One and returning it to the
Trustee. Such delivery will be made only against such
acknowledgment of receipt. The Agent will arrange for
payment to the account of the Company at Chase, or to
such other account as the Company shall have specified to
such Agent, in immediately available funds, of an amount
equal to the price of such Note less such Agent's
commission (if any). In the event that the instructions
given by such Agent for payment to the account of the
Company are revoked, the Company will as promptly as
possible wire transfer to the account of such Agent an
amount of immediately available funds equal to the amount
of such payment made.
E. Unless the relevant Agent is the end purchaser of such
Note, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will obtain the
acknowledgment of receipt of such Note by retaining Stub
Two.
F. The Trustee will send Stub Three to the Company by
first-class mail. Monthly, the Trustee will also send to
the Company a statement setting forth the principal
amount of the Notes outstanding as of that date under the
Indenture and setting forth a brief description of any
sales of which the Company has advised the Trustee that
have not yet been settled.
Settlement For sales by the Company of Certificated Notes to or
Procedures through an Agent (unless otherwise specified pursuant to
Timetable: a Terms Agreement), Settlement Procedures "A" through "F"
set forth above shall be completed on or before the
respective times in New York City set forth below:
Settlement
PROCEDURE TIME
---------- ----
A 2:00 p.m. on day before settlement date
B 3:00 p.m. on day before settlement date
C-D 2:15 p.m. on settlement date
E 3:00 p.m. on settlement date
F 5:00 p.m. on settlement date
Failure If a purchaser fails to accept delivery of and make
to Settle: payment for any Certificated Note, the relevant Agent
will notify the Company
B-13
and the Trustee by telephone and return such Note to the
Trustee. Upon receipt of such notice, the Company will
immediately wire transfer to the account of such Agent an
amount equal to the price of such Note less such Agent's
commission in respect of such Note (if any). Such wire
transfer will be made on the settlement date, if
possible, and in any event not later than the Business
Day following the settlement date. If the failure shall
have occurred for any reason other than a default by such
Agent in the performance of its obligations hereunder and
under the Distribution Agreement, then the Company will
reimburse such Agent or the Trustee, as appropriate, on
an equitable basis for its loss of the use of the funds
during the period when they were credited to the account
of the Company. Immediately upon receipt of the
Certificated Note in respect of which such failure
occurred, the Trustee will mark such Note "cancelled,"
make appropriate entries in the Trustee's records and
send such Note to the Company.
B-14
EXHIBIT C
PART I
FORM OF AGENT ACCESSION LETTER - PROGRAM
[Date]
To: The
New York Times Company
Re: The
New York Times Company (the "COMPANY")
U.S.$300,000,000 MEDIUM-TERM NOTE PROGRAM
Ladies and Gentlemen:
We refer to the Distribution Agreement dated as of September 17, 2002 (as
amended, modified or supplemented from time to time, the "DISTRIBUTION
AGREEMENT") relating to the above Medium-Term Note Program and made between
the Company and the Agents party thereto. Unless otherwise defined herein,
all terms used herein have the meanings given to them in the Distribution
Agreement.
We confirm that we are in receipt of a copy of the Distribution Agreement and
copies of all documents that we have requested and have found them to our
satisfaction.
For the purposes of the Distribution Agreement our notice details are as
follows:
(insert name, address, telephone, facsimile and attention).
In consideration of the appointment by the Company of us as an Agent under
the Distribution Agreement we hereby undertake, for the benefit of the
Company and each of the other Agents, that we will perform and comply with
all the duties and obligations expressed to be assumed by an Agent under the
Distribution Agreement.
This letter is governed by, and shall be construed in accordance with, the
law of the State of New York, without regard to conflicts of law principles.
Yours faithfully,
[Name of New Agent]
By_____________________________
Name:
Title:
cc: _______________________ (Trustee)
_______________________ (Agents)
EXHIBIT C
PART II
FORM OF CONFIRMATION LETTER - PROGRAM
[Date]
To: [Name and address of new Agent]
Re: U.S.$300,000,000 MEDIUM-TERM NOTE PROGRAM
Ladies and Gentlemen:
We refer to the Distribution Agreement dated as of September 17, 2002 (as
amended, modified or supplemented from time to time, the "DISTRIBUTION
AGREEMENT") relating to the above Medium-Term Note Program and hereby
acknowledge receipt of your Agent Accession Letter to us dated _____________.
In accordance with Section 11 of the Distribution Agreement we hereby confirm
that, with effect from the date hereof, you shall become a party to the
Distribution Agreement, vested with all the authority, rights, powers, duties
and obligations of an Agent as if originally named as Agent under the
Distribution Agreement.
Yours faithfully,
THE NEW YORK TIMES COMPANY
By_____________________________
Name:
Title:
C-2
EXHIBIT C
PART III
FORM OF AGENT ACCESSION LETTER - NOTE ISSUE
[Date]
To: The New York Times Company
Re: The New York Times Company (the "COMPANY")
U.S.$300,000,000 MEDIUM-TERM NOTE PROGRAM
Ladies and Gentlemen:
We refer to the Distribution Agreement dated as of September 17, 2002 (as
amended, modified or supplemented from time to time, the "DISTRIBUTION
AGREEMENT") relating to the above Medium-Term Note Program and made between
the Company and the Agents party thereto. Unless otherwise defined herein,
all terms used herein have the meanings given to them in the Distribution
Agreement.
We confirm that we are in receipt of a copy of the Distribution Agreement and
copies of all documents that we have requested and have found them to our
satisfaction.
For the purposes of the Distribution Agreement our notice details are as
follows:
(insert name, address, telephone, facsimile and attention).
In consideration of the Company appointing us as an Agent in respect of the
issue of [__________ Medium-Term Notes due __________] (the "ISSUE") under
the Distribution Agreement we hereby undertake, for the benefit of the Issuer
and each of the other Agents, that in relation to the Issue we will perform
and comply with all the duties and obligations expressed to be assumed by an
Agent under the Distribution Agreement.
C-3
This letter is governed by, and shall be construed in accordance with, the
law of the State of New York, without regard to conflicts of law principles.
Yours faithfully,
[Name of New Agent]
By_____________________________
Name:
Title:
cc: _______________________ (Trustee)
C-4
EXHIBIT C
PART IV
FORM OF CONFIRMATION LETTER - NOTE ISSUE
[Date]
To: [Name and address of new Agent]
Re: The New York Times Company
U.S.$300,000,000 MEDIUM-TERM NOTE PROGRAM
Ladies and Gentlemen:
We refer to the Distribution Agreement dated as of September 17, 2002 (as
amended, modified or supplemented from time to time, the "DISTRIBUTION
AGREEMENT") relating to the above Medium-Term Note Program and hereby
acknowledge receipt of your Agent Accession Letter to us dated ___________.
In accordance with Section 11 of the Distribution Agreement we hereby confirm
that, with effect from the date hereof in respect of the issue of __________
Medium-Term Notes due __________ (the "ISSUE"), you shall become a party to
the Distribution Agreement, vested with all the authority, rights, powers,
duties and obligations of an Agent in relation to the Issue as if originally
named as Agent under the Distribution Agreement, provided that following the
issue of the Notes representing the Issue you shall have no further
authority, rights, powers, duties or obligations except such as may have
accrued or been incurred prior to or in connection with the issue of such
Notes.
Yours faithfully,
THE NEW YORK TIMES COMPANY
By_____________________________
Name:
Title:
cc: _______________________ (Trustee)
C-5
