Exhibit 99.5
PLACEMENT AGENCY AGREEMENT
PLACEMENT AGENCY AGREEMENT dated as of November 6, 1987
between TRIBUNE COMPANY, a Delaware corporation (the "Company"), and XXXXXXX
XXXXX MONEY MARKETS INC., a Delaware corporation ("Xxxxxxx Xxxxx").
W I T N E S S E T H:
WHEREAS, the Company has requested Xxxxxxx Xxxxx to act as the
agent of the Company for the private placement to accredited investors of the
Company's unsecured notes with maturities of up to 270 days from date of issue
substantially in the form of Exhibit A hereto (the "Notes").
WHEREAS, it is contemplated that the maximum aggregate face
amount of the Notes to be outstanding at any one time will be $450,000,000.
WHEREAS, Xxxxxxx Xxxxx has indicated its willingness to act as
the agent of the Company in the private placement of the Notes, subject to the
satisfactory completion of such investigation and inquiry into the Company's
business as Xxxxxxx Xxxxx xxxxx appropriate under the circumstances.
NOW THEREFORE, in consideration of the premises, the parties
agree as follows:
1. Appointment as Placement Agent. (a) The Company appoints
Xxxxxxx Xxxxx its placement agent for the Notes and acknowledges that Xxxxxxx
Xxxxx shall have the right to assist the Company in the placement of the Notes
during the term of this Agreement. The Company agrees that during the period
Xxxxxxx Xxxxx is acting as the Company's placement agent hereunder, the Company
shall not directly contact or solicit potential investors to purchase the Notes.
(b) In soliciting purchases of the Notes in
accordance with clause (a) of this Section 1, Xxxxxxx Xxxxx shall act solely as
agent for the Company and not as principal. Xxxxxxx Xxxxx shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by Xxxxxxx Xxxxx and accepted by the
Company. Xxxxxxx Xxxxx shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. Xxxxxxx Xxxxx shall not
have any obligation to purchase, as principal, Notes from the Company under any
circumstances.
(c) The Company and Xxxxxxx Xxxxx agree that any
Notes the placement of which Xxxxxxx Xxxxx arranges shall be placed by Xxxxxxx
Xxxxx in reliance on the representations, warranties, covenants and agreements
of the Company contained herein and on the terms and conditions and in the
manner provided herein.
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(d) Upon receipt of instructions from the
Company, Xxxxxxx Xxxxx will use its best efforts to solicit purchases of such
principal amount of the Notes as the Company and Xxxxxxx Xxxxx shall agree upon
from time to time during the term of this Agreement. Unless otherwise instructed
by the Company, Xxxxxxx Xxxxx will communicate to the Company, orally or in
writing, each offer to purchase Notes, other than those rejected by Xxxxxxx
Xxxxx. Xxxxxxx Xxxxx shall have the right, in its discretion reasonably
exercised, to reject any proposed purchase of Notes, in whole or in part.
(e) The Company may instruct Xxxxxxx Xxxxx to
suspend solicitation of purchases of Notes at any time. Upon receipt of such
instructions, Xxxxxxx Xxxxx will forthwith suspend solicitations until such time
as the Company has advised it that solicitation of purchases may be resumed.
2. Offers and Sales of the Notes. The offer and sale of the
Notes by the Company is to be effected pursuant to the exemption from the
registration requirements of the Securities Act of 1933, as amended (the "Act"),
provided by Section 4(2) thereof, which exempts transactions by an issuer not
involving any public offering. Offers and sales of the Notes by the Company will
be made in accordance with the general provisions of Rule 506 under the Act,
provided that the Company need not file Form D as required by Rule 503 under the
Act. Xxxxxxx Xxxxx and the Company hereby establish the following procedures in
connection with the offer and sale or resale of the Notes:
(a) Offers and sales of the Notes will be made
only to institutional purchasers which qualify as accredited investors (as
defined in Rule 501(a) under the Act) (each such institutional purchaser being
hereinafter called an "accredited investor"). No Notes will be offered to
natural persons.
(b) The Notes will be offered only by approaching
prospective purchasers on an individual basis. The Notes will not be offered or
sold by any means of general solicitation or general advertising.
(c) In the case of a non-bank purchaser acting as
a fiduciary for one or more third parties, each such third party will, in the
judgment of Xxxxxxx Xxxxx, after due inquiry, be an accredited investor.
(d) No sale of the Notes to any one purchaser
will be for less than $200,000 face amount and no Note will be issued in a
smaller face amount. If the purchaser is a non-bank fiduciary acting on behalf
of others, each person for whom it is acting must purchase at least $200,000
face amount of the Notes.
(e) Each Note shall contain the legend set forth
on the form of such Note attached as Exhibit A hereto stating in effect that
such Note has not been registered under the Act and
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that any resale or other transfer of such Note or any interest therein shall be
made only to or through Xxxxxxx Xxxxx to an institutional investor approved as
an accredited investor by Xxxxxxx Xxxxx. The purpose of this requirement is to
ensure that Notes are resold or otherwise transferred only to accredited
investors and not in a manner that might call into question the non-public
offering character of the offer and sale of the Notes. Xxxxxxx Xxxxx agrees that
(i) it will not effect or approve any such resale except to itself or to an
accredited investor and (ii) each such resale shall be made in accordance with
the provisions of this Section 2.
(f) Each purchaser of the Notes will have made
available to it a Private Placement Memorandum together with any supplements to
such Private Placement Memorandum which may have been prepared which describes
(A) the Notes, (B) the proposed use of proceeds of sale of the Notes, (C) the
business of the Company and any material change therein or in the financial
condition of the Company not disclosed in the documents described below, (D)
such summary financial information concerning the Company as the Company and
Xxxxxxx Xxxxx consider appropriate and (E) the restrictions on resale. The
Private Placement Memorandum will contain a statement expressly offering an
opportunity for each prospective purchaser to ask questions of, and receive
answers from, the Company and Xxxxxxx Xxxxx concerning the offering of the Notes
and to obtain additional relevant information which the Company or Xxxxxxx Xxxxx
possesses or can acquire without unreasonable effort or expense. The Private
Placement Memorandum will state that all periodic reports and reports on Form
8-K filed by the Company pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), are incorporated by reference therein. All
documents incorporated by reference into the Private Placement Memorandum will
be provided without charge to each prospective purchaser of Notes who requests
them. The Private Placement Memorandum and such incorporated documents are
herein referred to as the "Disclosure Documents."
(g) The Company agrees to cooperate with Xxxxxxx
Xxxxx in the preparation of the Private Placement Memorandum and in amending it
as from time to time may be necessary. Accordingly, the Company agrees to
xxxxxxx Xxxxxxx Xxxxx with such number of copies of the most recent Annual
Reports of the Company on Form 10-K filed with the Securities and Exchange
Commission (the "SEC"), each definitive proxy statement, each report on Form
10-Q and each report on Form 8-K deemed by the Company to be material to
investors in the Notes filed by the Company with the SEC since the filing of the
most recent Form 10- K, as Xxxxxxx Xxxxx may require in connection with the
preparation of the Private Placement Memorandum. As long as any of the Notes are
outstanding, the Company will provide Xxxxxxx Xxxxx with copies of all interim,
quarterly and annual reports, proxy statements and registration statements which
the Company files with the SEC, as well as such other material information in
such quantities as Xxxxxxx Xxxxx may reasonably request.
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(h) The Company will immediately inform Xxxxxxx
Xxxxx in writing of any material adverse changes in or affecting the business,
earnings, affairs or business prospects of the Company which (i) make or might
make any statement in the Disclosure Documents false or misleading in any
material respect or (ii) are not disclosed in such documents. In such event,
Xxxxxxx Xxxxx shall not thereafter attempt to offer or place any of the Notes
until the Company shall have prepared and furnished to Xxxxxxx Xxxxx, in such
numbers as Xxxxxxx Xxxxx may require, supplements to, or amendments of, the
Private Placement Memorandum reflecting any such material changes. Prior to any
offer or sale of Notes, Xxxxxxx Xxxxx shall, with the cooperation of the
Company, have the right to make such reasonable due diligence investigation of
the business of the Company as is usual in the course of continuous offerings of
debt instruments.
Xxxxxxx Xxxxx shall not be liable or responsible to the
Company for any losses, damages or liabilities suffered or incurred by the
Company, including any losses, damages or liabilities under the Act, arising
from or relating to any resale or transfer of a Note other than to or through
Xxxxxxx Xxxxx or approved by Xxxxxxx Xxxxx as contemplated by paragraph (e) of
this Section 2.
3. Representations and Warranties. The Company
represents and warrants to Xxxxxxx Xxxxx as of the date hereof
and as of each date contemplated by Section 4 hereof that:
(a) The Disclosure Documents do not and will not
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the circumstances
under which they are made, not misleading.
(b) The financial statements included in the
Disclosure Documents, if any, are and will be in accordance with the related
books and records of the Company, and are and will be complete and correct and
fairly present in accordance with generally accepted accounting principles the
financial position of the Company and its consolidated subsidiaries as at the
dates set forth therein and the results of their operations for the periods set
forth therein. Except as set forth in the Disclosure Documents, said financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a basis which is consistent in all material respects
during the periods involved. The supporting schedules, if any, included in the
financial statements present fairly the information required to be stated
therein as of the dates or for the periods indicated.
(c) Since the respective dates as of which
information is given in the Disclosure Documents, except as may otherwise be
stated or contemplated therein or in any amendment or supplement thereto, there
has not been any material adverse
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change in the condition, financial or otherwise, of the Company and its
subsidiaries taken as a whole, or in the earnings, affairs or business prospects
of the Company and its subsidiaries taken as a whole, whether or not arising in
the ordinary course of business.
(d) The Company (i) has been duly incorporated
and is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and (ii) has the requisite corporate power and
authority to execute and deliver the Notes and perform its obligations
thereunder and to own its properties and conduct its business as described in
the Disclosure Documents.
(e) The Company is not in violation of its
charter or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any material contract,
indenture, mortgage, loan agreement or lease to which the Company is a party or
by which it may be bound, and the execution and delivery of this Agreement and
the Notes and the incurrence of the obligations and consummation of the
transactions herein contemplated will not conflict with, or constitute a breach
of or default under, the charter or by-laws of the Company or any material
contract, indenture, mortgage, loan agreement or lease, to which the Company is
a party or by which it may be bound, or any law, administrative regulation or
court decree.
(f) This Agreement has been duly authorized,
executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws relating to or affecting generally the enforcement of creditors'
rights or by general equitable principles.
(g) The Notes have been duly authorized for
issuance, offer and sale as contemplated by this Agreement and, when issued and
delivered against payment of the purchase price therefor, will constitute legal,
valid and binding obligations of the Company enforceable in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws relating to or affecting generally the
enforcement of creditors' rights or by general equitable principles.
(h) Assuming compliance with Section 5(b) hereof,
no consent, approval, authorization, order, registration or qualification of or
with any court or any regulatory authority or other governmental agency or body
(including the SEC) is required for the issuance, offer or sale of the Notes by
the Company in accordance with the terms of this Agreement or for the
consummation of the transactions contemplated by this Agreement or the Notes.
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(i) There are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the
subject, other than as set forth in the Disclosure Documents and other than
legal or governmental proceedings which in each case will not have a material
adverse effect on the business, financial condition, shareholders' equity or
results of operations of the Company and its subsidiaries taken as a whole; and
to the best of its knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(j) The Company is not an "investment company" or
a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(k) The offer, issuance, sale and delivery of the
Notes in accordance with the terms of this Agreement will constitute exempted
transactions under the Act pursuant to Section 4(2) thereof, and registration of
the Notes under the Act will not be required in connection with any such offer,
issuance, sale or delivery of the Notes.
(l) The Notes, when issued, will rank pari passu
with all other unsecured and unsubordinated indebtedness of the
Company.
4. Additional Representation and Warranty. Each
--------------------------------------
acceptance by the Company of an offer for the purchase of Notes
shall be deemed an affirmation by the Company that its
representations and warranties set forth in Section 3 hereof are
true and correct at the time of such acceptance, and an
undertaking that such representations and warranties will be true
and correct at the time of delivery to the purchaser or its agent
of the Note or Notes relating to such acceptance, as though made
at and as of such time (it being understood that insofar as such
representations and warranties relate to the Private Placement
Memorandum, such representations and warranties shall relate to
the Private Placement Memorandum delivered to prospective
purchasers of Notes at the time of such acceptance and at the
time of such delivery of the Note or Notes relating to such
acceptance, respectively).
5. Covenants. (a) The Company agrees that no future offer and
sale of debt securities of the Company of any class will be made if, as a result
of the doctrine of "integration" referred to in Rule 502 of Regulation D under
the Act, Securities Act Release No. 6389 (March 8, 1982), Securities Act
Releases Nos. 4434 (December 6, 1961), 4552 (November 6, 1962) and 4708 (July 9,
1964), and various "no-action" letters made available by the SEC, such offer and
sale would call into question the entitlement of the Notes to the exemption from
the registration requirements of the Act provided by Section 4(2) thereof.
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(b) The Company will endeavor, in cooperation
with Xxxxxxx Xxxxx, to qualify the Notes for offer and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Company and Xxxxxxx Xxxxx shall mutually agree, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes. The Company will file such statements and reports as may be required
by the laws of each jurisdiction in which the Notes have been qualified as above
provided. If requested by the Company, Xxxxxxx Xxxxx will deliver to the Company
prior to the first offer of Notes a copy of a Blue Sky Law Survey prepared by
Xxxxxx & Xxxxxx, counsel to Xxxxxxx Xxxxx in this transaction, with respect to
the offer and sale of the Notes.
(c) The Company will use the net proceeds of sale
of the Notes for general corporate purposes including the possible repurchase of
outstanding capital stock of the Company. Until the Company notifies Xxxxxxx
Xxxxx to the contrary, Xxxxxxx Xxxxx will not purchase and hold the notes as
principal (other than on an "intra-day" basis). The Company will not use the
proceeds of Notes purchased and held by Xxxxxxx Xxxxx, as principal, for the
purchase or carrying of securities.
(d) Pursuant to a certain issuing and paying
agency agreement dated as of November 22, 1985 between the Company and Xxxxxx
Guaranty Trust Company of New York (the "Issuing and Paying Agent"), the Company
will maintain a bank account at the issuing and Paying Agent into which all of
the proceeds of the sale of the Notes will be deposited by the Issuing and
Paying Agent. Only (i) the proceeds of sale of the Notes and (ii) such funds as,
together with the proceeds of the Notes, shall be necessary to make all payments
in respect of the Notes, shall be deposited in such account, which shall be
maintained at the Issuing and Paying Agent separate and apart from any other
account into which the Issuing and Paying Agent may be authorized by the Company
to deposit proceeds of sale of other commercial paper notes or other notes which
the Company may offer, either publicly or privately, in the United States or to
United States residents. Appropriate corporate controls will be instituted and
maintained to assure that the proceeds from the sale of the Notes will be used
for purposes which will not impair the availability of the exemption under
Section 4(2) of the Act for the offer, issuance, sale and delivery of the Notes.
6. Conditions Precedent to Placement of the Notes. (a) Prior
to the initial placement of Notes hereunder, the Company shall cause to be
delivered to Xxxxxxx Xxxxx (i) the written opinion of counsel to the Company in
substantially the form of Exhibit B hereto, (ii) a certificate of the Secretary
or other appropriate officer of the Company certifying true copies of the
resolutions of the Company approving this Agreement, the Notes and the
transactions contemplated hereby and certifying the incumbency, authority and
true signatures of the officers of the Company authorized to sign this Agreement
and the Notes, (iii) a
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certificate of the Treasurer, Chief Financial Officer or other appropriate
officer of the Company certifying that the representations and warranties set
forth in Section 3 hereof are true and correct, and (iv) an original executed
copy, photocopy or conformed copy of the Issuing and Paying Agency Agreement,
which shall be in form and substance acceptable to Xxxxxxx Xxxxx. Xxxxxxx Xxxxx
may deliver a copy of the opinion referred to in clause (i) above to any
purchaser of a Note who requests such copy.
(b) Prior to the initial placement of any Notes
hereunder, such Notes shall have been rated at least "A-2" by Standard & Poor's
Corporation and at least "P-2" by Xxxxx'x Investors Service, Inc. and upon each
subsequent placement of Notes hereunder such ratings shall be in full force and
effect. Such ratings were obtained by the Company with the understanding that
the agencies providing such ratings would continue to monitor the credit of the
Company and make future adjustments in such ratings to the extent warranted.
7. Delivery of and Payment for the Notes. Delivery of the
Notes shall be made by the Company through the Issuing and Paying Agent to
Xxxxxxx Xxxxx for the account of any purchaser only against payment therefor in
immediately available funds. In the event that a customer shall either fail to
accept delivery of or make payment for a Note on the date fixed for settlement,
Xxxxxxx Xxxxx shall promptly notify the Company, and, if Xxxxxxx Xxxxx has
theretofore paid the Company for such Note, the Company will promptly return
such funds to Xxxxxxx Xxxxx against its return of the Note to the Company. If
such failure occurred for any reason other than the failure by Xxxxxxx Xxxxx in
the performance of its obligations hereunder, the Company will reimburse Xxxxxxx
Xxxxx on an equitable basis for Xxxxxxx Xxxxx'x loss of the use of the funds for
the period such funds were credited to the Company's account. If such failure
occurred solely as a result of the failure by Xxxxxxx Xxxxx in the performance
of its obligations hereunder, Xxxxxxx Xxxxx will reimburse the Company on an
equitable basis for the Company's loss of the use of the funds with respect to
the date fixed for settlement.
8. Indemnification and Contribution. (a) The Company
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agrees to indemnify and hold harmless Xxxxxxx Xxxxx and each person who controls
Xxxxxxx Xxxxx within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
Xxxxxxx Xxxxx or they may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Disclosure Documents, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be
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stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, for any legal or other expenses
reasonable incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of Xxxxxxx Xxxxx specifically for use in connection
with the preparation thereof. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Xxxxxxx Xxxxx agrees to indemnify and hold harmless the
Company and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to Xxxxxxx Xxxxx, but only with reference to written information
relating to the offering by Xxxxxxx Xxxxx of the Notes furnished to the Company
by or on behalf of Xxxxxxx Xxxxx specifically for use in the preparation of the
Disclosure Documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which Xxxxxxx Xxxxx may otherwise
have. The Company acknowledges that the statements set forth (i) under the
heading "Plan of Distribution" and (ii) under the heading "Private Placement"
(except for the first paragraph, the second sentence of the third paragraph, the
second sentence of the fifth paragraph and the sixth paragraph), in the Private
Placement Memorandum constitute the only information furnished in writing by or
on behalf of Xxxxxxx Xxxxx for inclusion in the Disclosure Documents referred to
in the foregoing indemnity, and Xxxxxxx Xxxxx, as agent, confirms that such
statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified
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parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by Xxxxxxx Xxxxx in the case of paragraph (a) of this
Section 8, representing the indemnified parties under such paragraph (a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
paragraph (a) of this Section 8 is due in accordance with its terms but is for
any reason held by a court to be unavailable from the Company on grounds of
policy or otherwise, the Company and Xxxxxxx Xxxxx shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
to which the Company and Xxxxxxx Xxxxx may be subject in such proportion so that
Xxxxxxx Xxxxx is responsible for that portion represented by the percentage that
the aggregate commissions received by Xxxxxxx Xxxxx pursuant to Section 9(a) in
connection with the Notes from which such losses, claims, damages and
liabilities arise, bears to the aggregate principal amount of the Notes sold and
the Company is responsible for the balance; provided, however, that (y) in no
case shall Xxxxxxx Xxxxx be responsible for any amount in excess of the
commissions received by Xxxxxxx Xxxxx in connection with the Notes from which
such losses, claims, damages and liabilities arise and (z) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls Xxxxxxx Xxxxx within the meaning of the Act or the Exchange Act shall
have the same rights to contribution as Xxxxxxx Xxxxx and each person who
controls the
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Company within the meaning of either the Act or the Exchange Act shall have the
same rights to contribution as the Company, subject in each case to clause (y)
of this paragraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this paragraph (d), notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
The obligations under this Section 8 shall survive any
termination of this Agreement, in whole or in part.
9. Fees and Expenses. (a) As compensation for the
services of Xxxxxxx Xxxxx hereunder, the Company shall pay it, on
a discount basis, a commission for the sale of each Note at such
rate as shall be agreed upon from time to time by the Company and
Xxxxxxx Xxxxx.
(b) The Company will pay all of its costs and
expenses incident to the placement and issuance of the Notes, and will reimburse
Xxxxxxx Xxxxx for one-half of the fees and disbursements of Xxxxxx & Xxxxxx,
counsel to Xxxxxxx Xxxxx in this transaction, relating to the preparation of a
legal opinion regarding the availability of an exemption for the offer, issuance
and sale of the Notes under Section 4(2) of the Act, provided that the Company
shall not be liable for more than $2,000 in respect of the fee portion of such
reimbursement.
10. Notices. Unless otherwise indicated, all notices required
under the terms and provisions hereof shall be in writing, either delivered by
hand, by mail (postage prepaid), or by telex, telecopier or telegram, and any
such notice shall be effective when received at the address specified below.
If to the Company:
Tribune Company
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
If to Xxxxxxx Xxxxx:
Xxxxxxx Xxxxx Money Markets Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxx
Telephone No. (000) 000-0000
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Facsimile No. (000) 000-0000
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 10 to the other party
hereto.
11. Governing Law. This Agreement shall be governed
by and construed in accordance with, the laws of the State of New
York.
12. Amendment and Termination; Successors; Counterparts. (a)
The terms of this Agreement shall not be waived, altered, modified, amended or
supplemented in any manner whatsoever except by written instrument signed by
both parties hereto. Either party to this Agreement may terminate this Agreement
upon at least 30 days' written notice to each other party hereto, provided that
such termination shall not affect the obligations of the parties hereunder with
respect to Notes outstanding at the time of such termination and actions or
events occurring prior to such termination or with respect to Section 8 or
Section 9 hereof.
(b) This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns.
(c) This Agreement may be executed in several
counterparts, each of which shall be deemed an original hereof.
13. Captions. The captions in this Agreement are for
convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
14. Effective Date. This Agreement shall be effective
as of the date and year first above written.
15. Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
TRIBUNE COMPANY
By /s/ Xxxxx X. Xxxxxx
Authorized Signatory
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XXXXXXX XXXXX MONEY MARKETS INC.
By /s/ Xxxxxx X. Wittin Jr.
Authorized Signatory
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EXHIBIT A
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND SALES THEREOF MAY BE MADE ONLY TO INSTITUTIONAL INVESTORS APPROVED AS
ACCREDITED INVESTORS BY XXXXXXX XXXXX MONEY MARKETS INC. BY ITS ACCEPTANCE OF
THIS NOTE, THE PURCHASER REPRESENTS THAT THIS NOTE IS BEING ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR FOR SALE IN CONNECTION WITH, ANY PUBLIC
DISTRIBUTION THEREOF AND THAT ANY RESALE OF THIS NOTE WILL BE MADE ONLY TO OR
THROUGH XXXXXXX XXXXX MONEY MARKETS INC. TO AN INSTITUTIONAL INVESTOR APPROVED
BY XXXXXXX XXXXX MONEY MARKETS INC. AS AN ACCREDITED INVESTOR.
TRIBUNE COMPANY
__________, 19__ No.____________
For value received, TRIBUNE COMPANY promises to pay to the
order of BEARER on___________the sum of_________________ dollars at the office
of Xxxxxx Guaranty Trust Company of New York, [address].
TRIBUNE COMPANY
By______________________
Authorized Signatory
Countersigned for authentication only:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Issuing and Paying Agent
By______________________
Authorized Signatory
This Note is not valid for any purpose unless countersigned by
Xxxxxx Guaranty Trust Company of New York, as Issuing and Paying Agent.
EXHIBIT B
[Letterhead of________________,
counsel to the Company]
_______________, 1987
Xxxxxxx Xxxxx Money Markets Inc.
Xxxxxxx Xxxxx World Headquarters
World Financial Center - Xxxxx Xxxxx
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
[We] [I] have acted as counsel to Tribune Company (the
"Company") in connection with the proposed issuance of and offering to certain
institutional investors of the Company's unsecured promissory notes (the
"Notes") in the United States.
[We] [I] have examined the Placement Agency Agreement dated as
of November 6, 1987 (the "Placement Agency Agreement") between the Company and
Xxxxxxx Xxxxx Money Markets Inc. ("Xxxxxxx Xxxxx"), the Issuing and Paying
Agency Agreement dated as of November 22, 1985 (the "Issuing and Paying Agency
Agreement") between the Company and Xxxxxx Guaranty Trust Company of New York,
the form of the Notes and such other documents, corporate records, certificates
of public officials and other instruments and Company officer certificates as
[we] [I] have deemed appropriate, and such questions of law as [we] [I] have
considered relevant for purposes of this opinion. As to questions of fact
material to such opinion, [we] [I] have, when relevant facts were not
independently established by [us] [me], relied upon such certificates.
In considering the above documents, [we] [I] have assumed the
genuineness of all signatures thereon or on the originals thereof and the
conformity to original documents of all copies or specimen documents.
Unless otherwise defined herein, capitalized terms used herein
have the meanings assigned to such terms in the Placement Agency Agreement.
Based upon and subject to the foregoing, and based upon the
facts and the law as of the date hereof, [we are] [I am] of the opinion that:
1. The Company (i) has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the State of Delaware and (ii)
has the requisite corporate power and authority to
execute and deliver the Placement Agency
Agreement, the Issuing and Paying Agency Agreement
and the Notes and perform its obligations thereunder
and to own its properties and conduct its business as
described in the Disclosure Documents.
2. The Company is not in violation of its articles of
incorporation or, to the best of [our] [my] actual
knowledge after due inquiry, in default in the
performance or observance of any material
obligation, agreement, covenant or condition
contained in any material contract, indenture,
mortgage, loan agreement or lease known to [us]
[me], to which the Company is a party or by which
it may be bound. The execution and delivery of
the Placement Agency Agreement and the Notes and
the incurrence of the obligations and consummation
of the transactions therein contemplated will not
conflict with, or constitute a breach of or
default under, the articles of incorporation or
by-laws of the Company or, to the best of [our]
[my] actual knowledge after due inquiry, any
material contract, indenture, mortgage, loan
agreement, or lease known to [us] [me], to which
the Company is a party or by which it may be
bound, of which [we] [I] have knowledge, or any
law, administrative regulation, or, to the best of
[our] [my] actual knowledge after due inquiry, any
court decree.
3. The Placement Agency Agreement and the Issuing and
Paying Agency Agreement have each been duly
authorized, executed and delivered by the Company
and each constitutes the legal, valid and binding
obligation of the Company enforceable in
accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency
or other similar laws relating to or affecting
generally the enforcement of creditors' rights or
by general equitable principles.
4. The Notes have been duly authorized for issuance,
offer and sale as contemplated by the Placement
Agency Agreement and when issued and delivered
against payment of the purchase price therefor,
will constitute legal, valid and binding
obligations of the Company enforceable in
accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency
or other similar laws relating to or affecting
generally the enforcement of creditors' rights or
by general equitable principles.
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5. No consent, approval, authorization, order,
registration or qualification of or with any court
or any regulatory authority or other governmental
agency or body (including the Securities and
Exchange Commission) is required for the issuance,
offer or sale of the Notes by the Company in
accordance with the terms of the Placement Agency
Agreement or for the consummation of the
transactions contemplated by the Placement Agency
Agreement or the Notes, provided that no opinion
is expressed with respect to the availability of
an exemption for the issuance, offer and sale of
the Notes under Section 4(2) of the Securities Act
of 1933.
6. There are no legal or governmental proceedings
pending to which the Company is a party or of
which any property of the Company is the subject,
other than as set forth in the Disclosure
Documents and other than legal or governmental
proceedings which in each case will not have a
material adverse effect on the business, financial
condition, shareholders' equity or results of
operations of the Company and its subsidiaries
taken as a whole and to the best of my knowledge,
no such proceedings are threatened or contemplated
by governmental authorities or threatened by
others.
7. The Company is not an "investment company" or a
company "controlled" by an "investment company"
within the meaning of the Investment Company Act
of 1940, as amended.
8. The Notes rank at least pari passu with all other
unsecured and unsubordinated indebtedness of the
Company.
[We are members] [I am a member] of the Bar of the State of
_______ only and do not purport to be [an] expert[s] in, or to express any
opinion concerning the laws of any jurisdiction other than the State of
_________and the federal laws of the United States. To the extent that the
opinions herein involve the laws of the State of New York, we have assumed that
the laws of the State of __________ are the same as those of the State of New
York.
Very truly yours,
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