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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): OCTOBER 19, 1999
THE TIMES MIRROR COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 1-13492 95-4481525
(STATE OR OTHER JURISDICTION OF (COMMISSION FILE NUMBER) (IRS EMPLOYER IDENTIFICATION NO.)
INCORPORATION)
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TIMES MIRROR SQUARE 90053
LOS ANGELES, CALIFORNIA (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
</TABLE>
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (213) 237-3700
NONE
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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ITEM 5. OTHER EVENTS.
On October 23, 1997, The Times Mirror Company (the "Company") filed a
Registration Statement on Form S-3 (File No. 333-38605) (the "1997 Registration
Statement"), relating to the registration under the Securities Act of 1933, as
amended, of up to an initial aggregate offering price of $300,000,000 of debt
securities, convertible debt securities, exchangeable debt securities, preferred
stock, convertible preferred stock, exchangeable preferred stock, common stock,
warrants, stock purchase contracts and stock purchase units of the Company (the
"Securities"), which Registration Statement was declared effective on October
30, 1997.
On September 9, 1999, the Company filed a Registration Statement on
Form S-3 (No. 333-86807), as amended by Amendment No. 1 to Form S-3, filed on
October 4, 1999 (together, the "1999 Registration Statement" and collectively
with the 1997 Registration Statement, the "Registration Statements"), relating
to the registration under the Securities Act of 1933, as amended, of up to an
initial aggregate offering price of $700,000,000 of Securities, which
Registration Statement was declared effective on October 5, 1999.
On October 14, 1999, the Company entered into an Underwriting Agreement
(filed herewith as Exhibit 1.1) with Goldman, Sachs & Co., Salomon Smith Barney
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, and Morgan Stanley &
Co. Incorporated (collectively, the "Underwriters"), pursuant to which the
Company agreed to issue and sell and the Underwriters agreed, subject to certain
conditions, to purchase $200,000,000 aggregate principal amount of the Company's
6.65% Notes due October 15, 2001 and $400,000,000 aggregate principal amount of
the Company's 7.45% Notes due October 15, 2009 (collectively, the "Notes")
registered under the Registration Statements at an initial public offering price
of 99.931% of par for the 6.65% Notes and 99.869% of par for the 7.45% Notes
less underwriting discounts and commissions.
The issuance and sale of the Notes were completed on October 19, 1999.
The Notes were issued pursuant to an Indenture (the "Original Indenture")
between the Company and Citibank, N.A., as trustee, dated as of March 19, 1996
(incorporated herein by reference to Exhibit 4.1 to the Company's Form 8-K dated
March 13, 1996 and filed with the Securities and Exchange Commission (the
"Commission") on March 19, 1996), as supplemented and amended by the First
Supplemental Indenture (the "Supplemental Indenture") dated as of October 19,
1999 (filed herewith as Exhibit 4.3) (collectively, the Original Indenture and
Supplemental Indenture shall be referred to as the "Indenture").
In connection with the issuance of the Notes under the Indenture, the
Company delivered an Officers' Certificate dated October 19, 1999 (filed
herewith as Exhibit 4.2) setting forth the terms of the Notes.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
The following exhibits are filed with this report on Form 8-K:
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<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
1.1 Underwriting Agreement dated October 14, 1999 among
the Company and Goldman, Sachs & Co., Salomon Smith
Barney Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Morgan Stanley & Co. Incorporated.
4.1 Indenture dated as of March 19, 1996 between the
Company and Citibank, N.A., as trustee (incorporated
herein by reference to Exhibit 4.1 to the Company's
Form 8-K dated March 13, 1996 and filed with the
Commission on March 19, 1996).
4.2 Officers' Certificate dated October 19, 1999
establishing the terms of the Notes and attaching
specimen Forms of Notes.
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4.3 First Supplemental Indenture dated as of October 19,
1999 between the Company and Citibank, N.A., as
trustee.
5.1 Opinion of Gibson, Dunn & Crutcher LLP regarding the
legality of the securities being issued.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE TIMES MIRROR COMPANY
Date: October 19, 1999 By: /s/ ROGER MOLVAR
-------------------------------------
Roger Molvar
Senior Vice President and Controller
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EXHIBIT INDEX
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<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
1.1 Underwriting Agreement dated October 14, 1999 among the
Company and Goldman, Sachs & Co., Salomon Smith Barney
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated
and Morgan Stanley & Co. Incorporated.
4.1 Indenture dated as of March 19, 1996 between the Company
and Citibank, N.A., as trustee (incorporated herein by
reference to Exhibit 4.1 to the Company's Form 8-K dated
March 13, 1996 and filed with the Commission on March 19,
1996).
4.2 Officers' Certificate dated October 19, 1999 establishing
the terms of the Notes and attaching the specimen Forms of
Notes.
4.3 First Supplemental Indenture dated as of October 19, 1999
between the Company and Citibank, N.A., as trustee.
5.1 Opinion of Gibson, Dunn & Crutcher LLP regarding the
legality of the securities being issued.
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EXHIBIT 1.1
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THE TIMES MIRROR COMPANY
(a Delaware corporation)
6.65% NOTES DUE OCTOBER 15, 2001
7.45% NOTES DUE OCTOBER 15, 2009
UNDERWRITING AGREEMENT
Dated: October 14, 1999
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THE TIMES MIRROR COMPANY
(A DELAWARE CORPORATION)
$600,000,000
$200,000,000 6.65% NOTES DUE OCTOBER 15, 2001
$400,000,000 7.45% NOTES DUE OCTOBER 15, 2009
UNDERWRITING AGREEMENT
October 14, 1999
Goldman, Sachs & Co.
Salomon Smith Barney Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
The Times Mirror Company, a Delaware corporation (the
"Company"), confirms its agreement with Goldman, Sachs & Co. ("Goldman Sachs")
and each of the other Underwriters named in Schedule I hereto (collectively, the
"Underwriters"), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule I of $200,000,000
aggregate principal amount of the Company's 6.65% Notes Due October 15, 2001 and
$400,000,000 aggregate principal amount of the Company's 7.45% Notes Due October
15, 2009 (collectively, the "Securities"). The Securities are to be issued
pursuant to an Indenture (the "Original Indenture") dated as of March 19, 1996
between the Company and Citibank, N.A., as trustee (the "Trustee"), as
supplemented by that First Supplemental Indenture, to be dated as of October 19,
1999 (the "Supplemental Indenture," collectively with the Original Indenture,
the "Indenture"). The term "Indenture," as used herein, includes the Officers'
Certificate establishing the form and terms of the Securities pursuant to
Section 301 of the Indenture.
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The Company understands that the Underwriters propose to make
a public offering of the Securities as soon as the Underwriters deem advisable
after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
relating to the issuance of securities of the Company, has filed with or
transmitted for filing to the Commission a preliminary prospectus supplement
specifically relating to the Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"), and shall promptly
hereafter file with or transmit for filing to the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to the Securities
pursuant to Rule 424 under the Securities Act. The term Registration Statement
means the registration statement as amended to the date of this Agreement. The
term Basic Prospectus means the prospectus included in the Registration
Statement. The term Prospectus means the Basic Prospectus together with the
Prospectus Supplement. As used herein, the terms "Basic Prospectus" and
"Prospectus" shall include in each case the documents, if any, incorporated by
reference therein (the "Incorporated Documents"). The terms "supplement,"
"amendment" and "amend" 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"). The term
"Significant Subsidiaries" means the entities listed on Schedule II hereto. The
term "subsidiary" shall mean any subsidiary of the Company and shall also
include Eagle New Media Investments, LLC and Eagle Publishing Investments, LLC
(the "Eagle LLCs"), of which the Company is the sole manager pursuant to the
terms of the respective limited liability company agreements of the Eagle LLCs.
1. Representations and Warranty. The Company represents and
warrants to and agrees with each of the Underwriters:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the knowledge of the Company, threatened by the Commission.
(b) (i) 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. (ii) The Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder. (iii) 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
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they were made, not misleading, except that the representations and
warranties set forth in this Section 1(b) do not apply (A) to
statements or omissions in the Registration Statement or the Prospectus
based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through Goldman Sachs expressly
for use therein or (B) 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 (the "Form T-1"). (iv) The Prospectus as delivered from time to
time shall incorporate by reference the most recent Annual Report of
the Company on Form 10-K filed with the Commission and each Quarterly
Report of the Company on Form 10-Q and each Current Report of the
Company on Form 8-K filed with the Commission since the filing of the
then most recent Annual Report of the Company on Form 10-K. The
documents incorporated or deemed to be incorporated by reference in the
Registration Statement and Prospectus at the time they were or
hereafter are filed with the Commission complied and will comply in all
material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder (the "Exchange Act
Regulations"), and, when read together with the other information in
the Registration Statement and Prospectus, at the date of the
Prospectus and at the Closing Date, will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. (v) The accountants who certified the financial statements
and supporting schedules included or incorporated by reference in the
Registration Statement and Prospectus are independent certified public
accountants with respect to the Company and its subsidiaries within the
meaning of Regulation S-X under the Securities Act. (vi) The financial
statements included or incorporated by reference in the Registration
Statement and Prospectus, together with the related schedules and
notes, present fairly, in all material respects, the financial position
of the Company and its consolidated subsidiaries at the dates indicated
and the statements of operations, shareholders' equity and cash flows
of the Company and its consolidated subsidiaries for the periods
specified; such financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP"). The supporting
schedules, if any, included in the Registration Statement and
Prospectus present fairly in all material respects the information
required to be stated therein.
(c) Each of the Company and its Significant Subsidiaries has
been duly organized and is validly existing as a corporation or limited
liability company, as the case may be, in good standing under the laws
of its jurisdiction of organization, with full power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus, except where the failure to be in good
standing, either singly or in the aggregate, would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business or operations of the Company and its subsidiaries,
taken as a whole (each, a "Material Adverse Effect").
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(d) Each of the Company and its Significant Subsidiaries is
duly qualified or registered, as applicable, to do business as a
foreign corporation or limited liability company, as the case may be,
and is in good standing in each jurisdiction where the character of the
business conducted by it or the location of its properties owned or
leased by it makes such qualification or registration necessary and in
which the absence of such qualification or registration, either singly
or in the aggregate, would have a Material Adverse Effect.
(e) The outstanding shares of capital stock of each of the
Significant Subsidiaries (other than Eagle LLCs) of the Company have
been duly authorized and validly issued, are fully paid and
nonassessable and are owned beneficially by the Company free and clear
of all liens, encumbrances, equities and claims. The Company is the
sole manager of the Eagle LLCs and, therefore, controls such companies.
(f) Each of the Company and its Significant Subsidiaries is in
compliance with all laws, ordinances and regulations applicable to its
properties (whether owned or leased) and its business as described in
the Prospectus, except where failure to so comply, either singly or in
the aggregate, would not have a Material Adverse Effect.
(g) Each of the Company and its Significant Subsidiaries has
all government licenses or permits necessary to carry on its business
as such business is presently conducted and as described in the
Prospectus, except where failure to have such licenses or permits,
either singly or in the aggregate, would not have a Material Adverse
Effect. Except as set forth in the Prospectus or as previously
disclosed to you in writing, the Company has no reason to believe that
any federal or state authorities are considering modifying, suspending
or revoking any such licenses, or that such authorities or any other
agencies are investigating the Company or any of its Significant
Subsidiaries other than in the ordinary course of administrative
review.
(h) This Agreement has been duly authorized, executed and
delivered by the Company.
(i) The Supplemental Indenture has been duly authorized, and
when executed and delivered by the Company and, assuming the due
authorization, execution and delivery of the Supplemental Indenture by
the Trustee, will be a valid and binding agreement of the Company,
enforceable in accordance with its terms subject to the effect of (a)
applicable bankruptcy, reorganization, insolvency, moratorium and other
similar laws and court decisions of general application (including,
without limitation, statutory or other laws regarding fraudulent or
preferential transfers) relating to, limiting or affecting the
enforcement of creditors' rights generally, (b) general principles of
equity that may limit the enforceability of the remedies, covenants or
other provisions of the Supplemental Indenture and the availability of
injunctive relief or other equitable remedies and (c) the application
of principles of equity (regardless of
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whether enforcement is considered in proceedings at law or in equity)
as such principles relate to, limit or affect the enforcement of
creditors' rights generally.
(j) The Original Indenture, upon the filing of the Current
Report on Form 8-K dated October 12, 1999 with the Commission filing
the Form T-1, was duly qualified under the Trust Indenture Act, and the
Original Indenture has been duly authorized, executed and delivered by
the Company, and, assuming the due authorization, execution and
delivery of the Original Indenture by the Trustee, is a valid and
binding agreement of the Company, enforceable in accordance with its
terms subject to the effect of (a) applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws and court
decisions of general application (including, without limitation,
statutory or other laws regarding fraudulent or preferential transfers)
relating to, limiting or affecting the enforcement of creditors' rights
generally, (b) general principles of equity that may limit the
enforceability of the remedies, covenants or other provisions of the
Indenture and the availability of injunctive relief or other equitable
remedies and (c) the application of principles of equity (regardless of
whether enforcement is considered in proceedings at law or in equity)
as such principles relate to, limit or affect the enforcement of
creditors' rights generally.
(k) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable in accordance with their terms subject to the
effect of (a) applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws and court decisions of general
application (including, without limitation, statutory or other laws
regarding fraudulent or preferential transfers) relating to, limiting
or affecting the enforcement of creditors' rights generally, (b)
general principles of equity that may limit the enforceability of the
remedies, covenants or other provisions of the Securities and the
availability of injunctive relief or other equitable remedies and (c)
the application of principles of equity (regardless of whether
enforcement is considered in proceedings at law or in equity) as such
principles relate to, limit or affect the enforcement of creditors'
rights generally.
(l) The Securities and the Indenture will conform in all
material respects to the respective statements relating thereto
contained in the Prospectus and will be in substantially the respective
forms filed as exhibits to, or incorporated by reference in, as the
case may be, the Registration Statement.
(m) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture and the Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the
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Company or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under
this Agreement, the Indenture, the Securities, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities.
(n) Since the most recent date as of which information is
given in the Prospectus, except as otherwise stated therein, (A) there
has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, (B) there have been
no transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise, and (C) except for regular quarterly dividends on the
capital stock of the Company in amounts per share that are consistent
with past practice, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(o) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or any
of its Significant Subsidiaries is a party or to which any of the
properties of the Company or any of its Significant Subsidiaries is
subject that are required to be described in the Registration Statement
or the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required.
(p) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
(q) To its best knowledge, the Company has complied with all
provisions of Section 517.075, Florida Statutes relating to doing
business with the Government of Cuba or with any person or affiliate
located in Cuba, except where the failure to so comply would not have a
Material Adverse Effect.
(r) Each of the total assets, the revenues and the income
(loss) before income taxes of the Company and the Significant
Subsidiaries, taken as a whole, constitutes 90% or more of each of the
total assets, the revenues and the income (loss) before income taxes,
respectively, of the Company and all of its subsidiaries, taken as a
whole, as of and for the six months ended June 30, 1999.
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(s) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to
which the business or operations of the Company or any of its
subsidiaries will be affected by the Year 2000 Problem. As a result of
such review, the Company has no reason to believe, and does not
believe, that the Year 2000 Problem will have a material adverse effect
on the general affairs, management, the current or future consolidated
financial position, business prospects, stockholders' equity or results
of operations of the Company and its subsidiaries or result in any
material loss or interference with the Company's business or
operations. The "Year 2000 Problem" as used herein means any
significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000.
2. Agreements to Sell and Purchase. The Company hereby agrees
to sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company, at the price set forth in Schedule III hereto, the aggregate principal
amount of Securities set forth in Schedule I hereto opposite its name plus any
additional principal amount of Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 8 hereof.
3. Payment and Delivery. Payment of the purchase price for,
and delivery of certificates for, the Securities shall be made at the offices of
Latham & Watkins, or at such other place, as shall be agreed upon by the
Underwriters and the Company, at 7:00 A.M. (California time) on October 19,
1999, or such other time not later than ten business days after such date as
shall be agreed upon by the Underwriters and the Company (such time and date of
payment and delivery being herein called "Closing Date").
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company, against
delivery to the Underwriters of certificates for the Securities to be purchased
by them. It is understood that each Underwriter has authorized Goldman Sachs,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to purchase. Goldman
Sachs, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Securities
to be purchased by any Underwriter whose funds have not been received by the
Closing Date, but such payment shall not relieve such Underwriter from its
obligations hereunder.
Certificates for the Securities shall be in such denominations
($1,000 or integral multiples thereof) and registered in such names as the
Underwriters may request in writing at least one full business day before the
Closing Date. The Securities will be made available for
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examination and packaging by the Underwriters in The City of New York not later
than 12:00 P.M. (Eastern time) on the business day prior to the Closing Date.
All references herein to "certificates" shall mean a global security or
securities registered in the name of The Depository Trust Company or its
nominee.
4. Conditions to the Underwriters' Obligations. The
obligations of the Company to sell the Securities to the Underwriters and the
several obligations of the Underwriters to purchase and pay for such Securities
are subject to the satisfaction of each of the following conditions.
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) 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;
(ii) 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 (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to
market the Securities on the terms and in the manner
contemplated in the Prospectus; and
(iii) no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or
shall be pending before or contemplated by the Commission.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clauses (a)(i), (ii) and
(iii) above (except that in the case of clause (a)(ii), the
determination shall be in the judgment of such officer) and to the
effect that the representations and warranties of the Company contained
in this Agreement are true and correct as of the Closing Date and that
the Company has complied in all material respects with all of the
agreements and satisfied in all material respects all of the conditions
on its part to be performed or satisfied hereunder on or before the
Closing Date.
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The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Gibson, Dunn & Crutcher LLP, outside counsel for the
Company, dated the Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed
and delivered by the Company;
(ii) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and, assuming the due authorization,
execution and delivery of the Indenture by the Trustee, is a
valid and binding agreement of the Company, enforceable in
accordance with its terms subject to the effect of (a)
applicable bankruptcy, reorganization, insolvency, moratorium
and other similar laws and court decisions of general
application (including, without limitation, statutory or other
laws regarding fraudulent or preferential transfers) relating
to, limiting or affecting the enforcement of creditors' rights
generally, (b) general principles of equity that may limit the
enforceability of the remedies, covenants or other provisions
of the Indenture and the availability of injunctive relief or
other equitable remedies and (c) the application of principles
of equity (regardless of whether enforcement is considered in
proceedings at law or in equity) as such principles relate to,
limit or affect the enforcement of creditors' rights
generally;
(iii) the Securities have been duly authorized by the
Company and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid
for by the Underwriters in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company,
enforceable in accordance with their terms subject to the
effect of (a) applicable bankruptcy, reorganization,
insolvency, moratorium and other similar laws and court
decisions of general application (including, without
limitation, statutory or other laws regarding fraudulent or
preferential transfers) relating to, limiting or affecting the
enforcement of creditors' rights generally, (b) general
principles of equity that may limit the enforceability of the
remedies, covenants or other provisions of the Securities and
the availability of injunctive relief or other equitable
remedies and (c) the application of principles of equity
(regardless of whether enforcement is considered in
proceedings at law or in equity) as such principles relate to,
limit or affect the enforcement of creditors' rights
generally;
(iv) the statements (A) in the Prospectus under the
captions "Description of the Notes," and "Underwriting," and
(B) in the Registration Statement in Items 15 and 17, in each
case insofar as such statements constitute
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summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings
and fairly summarize the matters referred to therein;
(v) the Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended;
(vi) the Registration Statement and Prospectus
(excluding the Incorporated Documents and except for financial
statements and schedules and other financial data 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.
In addition to the foregoing opinions, such counsel shall
state that based upon certain specified activities, such counsel has no reason
to believe that (except for financial statements and schedules and other
financial data as to which such counsel need not express any belief and except
for that part of the Registration Statement that constitutes the Form T-1
heretofore referred to) the Registration Statement and the Prospectus at the
time the Registration Statement became effective, and the Registration Statement
and the Prospectus on the date of this Agreement, or at the Closing Date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading and that (except for financial statements and schedules and other
financial data as to which such counsel need not express any belief) the
Prospectus contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(d) The Underwriters shall have received on the Closing Date
an opinion of William A. Niese, General Counsel for the Company, dated
the Closing Date, to the effect that:
(i) each of the Company and its Significant
Subsidiaries has been duly organized and is validly existing
as a corporation or limited liability company, as the case may
be, in good standing under the laws of its jurisdiction of
organization, with full power and authority (corporate and
other) to own its properties and conduct its business as
described in the Prospectus, except where the failure to be in
good standing, either singly or in the aggregate, would not
have a Material Adverse Effect;
(ii) the execution and delivery by the Company of,
and, as of the date of such opinion, the performance by the
Company of its obligations under, this Agreement, the
Securities and the Indenture will not contravene any provision
of applicable law, known to such counsel, or the certificate
of incorporation or by-laws of the Company or, to the best of
such counsel's
11
<PAGE> 12
knowledge, any agreement or other instrument binding upon the
Company or any of its Significant Subsidiaries that is
material to the Company and its subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any Significant
Subsidiary, and, as of the date of such opinion, no consent,
approval, authorization or order of, or qualification with,
any governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Securities and the Indenture, except such as
may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Securities;
(iii) 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 Significant Subsidiaries is
a party or to which any of the properties of the Company or
any of its Significant Subsidiaries is subject that are
required to be described in the Registration Statement or the
Prospectus 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
or to be filed as exhibits to the Registration Statement that
are not described or filed as required; and
(iv) the Registration Statement and Prospectus
(except for financial statements and schedules and other
financial data 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.
In addition to the foregoing opinions, such counsel shall
state that based upon certain specified activities, such counsel has no reason
to believe that (except for financial statements and schedules and other
financial data as to which such counsel need not express any belief and except
for that part of the Registration Statement that constitutes the Form T-1
heretofore referred to) the Registration Statement and the Prospectus at the
time the Registration Statement became effective, and the Registration Statement
and the Prospectus on the date of this Agreement, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and that
(except for financial statements and schedules and other financial data as to
which such counsel need not express any belief) the Prospectus contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(e) The Underwriters shall have received on the Closing Date
an opinion of Latham & Watkins, counsel for the Underwriters, dated the
Closing Date, covering the
12
<PAGE> 13
matters referred to in subparagraphs (i), (ii), (iii), (iv) (but only
as to the statements in the Prospectus under "Description of the Notes"
and "Underwriting") and (vi) of paragraph (c) above (but without any
exclusion for Incorporated Documents).
With respect to the last subparagraph of paragraph (c) above
and the last subparagraph of paragraph (d) above, Gibson, Dunn & Crutcher LLP,
William A. Niese and Latham & Watkins may state that their opinion and belief
are based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and review
and discussion of the contents thereof, but are without independent check or
verification, except as specified.
The opinions of Gibson, Dunn & Crutcher LLP and William A.
Niese described in paragraphs (c) and (d) above shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(f) The Underwriters shall have received, at the time of the
execution of this Agreement, a letter dated such date, in form and
substance satisfactory to the Underwriters from Ernst & Young LLP,
independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to financial statements and certain financial
information included or incorporated by reference in the Registration
Statement and Prospectus. At the Closing Date, the Underwriters shall
have received from Ernst & Young LLP, a letter dated as of the Closing
Date, to the effect that they reaffirm the statements made in the
letter referred to in the preceding sentence, except that the specified
date referred to shall be a date not more than three business days
prior to the Closing Date.
(g) At the Closing Date, the Securities shall be rated at
least "A2" by Moody's Investor Services and "A" by Standard & Poor's
Rating Services, a division of McGraw-Hill, Inc., and the Company shall
have delivered to the Underwriters a letter dated the Closing Date,
from each such rating agency, or other evidence satisfactory to the
Underwriters, confirming that the Securities have such ratings.
(h) At the Closing Date, counsel for the Underwriters shall
have been furnished with such documents as they may require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contemplated; and all proceedings taken by
the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be reasonably satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
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<PAGE> 14
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, 2 conformed copies of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and furnish to you in New York
City, without charge, prior to 2:00 P.M., local time on the business
day next succeeding the date of this Agreement and during the period
mentioned in paragraph (c) below, as many copies of the Prospectus and
any supplements and amendments thereto or to the Registration Statement
as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus in a manner that relates to or affects the
Securities, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company)
to which Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments
or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as you
shall reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering
the twelve-month period ending October 31, 2000 that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
14
<PAGE> 15
(f) To pay all expenses incident to the performance of its
obligations under this 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 Securities; (iii) the fees and disbursements of the
Company's counsel and accountants and of the Trustee and its counsel;
(iv) the qualification of the Securities under state securities or blue
sky laws in accordance with the provisions of Section 5(d), including
filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation of any blue sky or legal investment memoranda; (v) the
printing and delivery to the Underwriters in quantities as hereinabove
stated of copies of the Registration Statement and all amendments
thereto and of each preliminary prospectus and the Prospectus and any
amendments or supplements thereto; (vi) the printing and delivery to the
Underwriters of copies of any blue sky or legal investment memoranda;
(vii) any fees charged by rating agencies for the rating of the
Securities; (viii) the filing fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities
Dealers, Inc. made in connection with the offering of the Securities;
and (ix) any expenses incurred by the Company in connection with a "road
show" presentation to potential investors.
(g) During the period of time beginning from the date hereof
and continuing until the Closing Date, not to offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to the
Securities (other than commercial paper issued in the ordinary course
of business).
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls each Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act as follows:
(i) against any and all loss, liability, claim,
damage and reasonable expense (including the reasonable fees
and disbursements of counsel) whatsoever, as incurred, arising
out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any
amendment thereto or the Prospectus (or any amendment or
supplement thereto) and any preliminary prospectus supplement
relating to the Securities, or the omission or alleged
omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim,
damage and reasonable expense (including the reasonable fees
and disbursements of counsel) whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any
15
<PAGE> 16
governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission;
provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel
chosen by the Underwriters), reasonably incurred in
investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by the Underwriters expressly for
use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and reasonable expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement, the
Prospectus, or any amendments or supplements thereto, and any
preliminary prospectus supplement relating to the Securities, in
reliance upon and in conformity with written information furnished to
the Company by the Underwriters expressly for use therein.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by the Underwriters, which
counsel shall be reasonably acceptable to the Company, and, in the case
of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel
to the indemnified
16
<PAGE> 17
party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified
party.
(d) If at any time an indemnified party shall have requested
in writing an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice in writing of the terms of such
settlement at least 30 days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of
such settlement; provided, however, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, an indemnifying party shall not
be liable for any settlement of the nature contemplated by this Section
6(d) effected without its written consent if (x) such indemnifying
party reimburses such indemnified party in accordance with such request
to the extent it considers such request to be reasonable; and (y) such
indemnifying party provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior
to the date of such settlement.
7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
17
<PAGE> 18
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total purchase discount received by the Underwriters, in
each case as set forth in the Prospectus, bear to the aggregate initial offering
price of the Securities.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities sold by it exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of any 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.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
the Underwriter, and each director of the Company, each officer of the Company,
and each person, if any, who controls the
18
<PAGE> 19
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the Company.
The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the respective principal
amounts of Securities they have purchased hereunder, and not joint.
8. Termination.
(a) The Underwriters may terminate this Agreement, by notice
to the Company, at any time at or prior to Closing Date (i) if there has
been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Registration
Statement and Prospectus, except as otherwise stated therein, any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or
the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of
which is such as to make it in the judgment of the Underwriters,
impracticable to market the Securities or to enforce contracts for the
sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or
the New York Stock Exchange, if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq National Market
has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any
other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section
or pursuant to Section 9, such termination shall be without liability
of any party to any other party except as provided in Sections
5(f)(iv), 6, 7 and 9 hereof, and provided further that Sections 1, 6
and 7 shall survive such termination and remain in full force and
effect, and provided further that in the event that, for any reason
other than Section 8(a)(ii), 8(a)(iii) (not including, however, the
first clause thereof, relating to suspension or limitation on trading
in securities of the Company), 8(a)(iv), and 9 the Securities are not
delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of the
Securities.
19
<PAGE> 20
9. Effectiveness; Defaulting Underwriters. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Securities that it has or they have agreed to
purchase hereunder on such date, and the aggregate number of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate number of the Securities to
be purchased on such date, the other Underwriters shall be obligated severally
in the proportions that the number of Securities set forth opposite their
respective names in Schedule I bears to the number of Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as you may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such number of
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate number of Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Securities to
be purchased on such date, and arrangements satisfactory to you and the Company
for the purchase of such Securities are not made within 36 hours after such
default this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Sections 5(f), 6 and 7 hereof.
10. 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.
11. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
12. 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.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along
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<PAGE> 21
with all counterparts, will become a binding agreement between the Underwriters
and the Company in accordance with its terms.
Very truly yours,
THE TIMES MIRROR COMPANY
By: /s/ RAJENDER K. CHANDHOK
----------------------------------
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
GOLDMAN, SACHS & CO.
SALOMON SMITH BARNEY INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
By: GOLDMAN SACHS & CO.
By /s/ GOLDMAN, SACHS & CO.
----------------------------------------
Goldman, Sachs & Co.
For themselves and as representatives of the other Underwriters named in
Schedule I hereto.
21
<PAGE> 22
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount of Principal Amount of
Name of Underwriter 6.65% Notes 7.45% Notes
- ------------------- ------------------- -------------------
<S> <C> <C>
Goldman, Sachs & Co....................... $120,000,000 $240,000,000
Salomon Smith Barney Inc. 40,000,000 80,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.............................. 20,000,000 40,000,000
Morgan Stanley & Co. Incorporated.........
20,000,000 40,000,000
---------- ----------
Total..................................... $200,000,000 $400,000,000
</TABLE>
<PAGE> 23
SCHEDULE II
Significant Subsidiaries of the Company
The Baltimore Sun Company
Newsday, Inc.
Jeppesen Sanderson, Inc.
The Hartford Courant Company
Jeppesen & Co., GmbH
The Morning Call, Inc.
Times Mirror Magazines, Inc.
Eagle New Media Investments, LLC*
Eagle Publishing Investments, LLC*
AchieveGlobal, Inc.
EZ Buy & EZ Sell Recycler Corporation
The StayWell Company
- --------
* Affiliates that are controlled by the Company.
<PAGE> 24
SCHEDULE III
THE TIMES MIRROR COMPANY
$200,000,000 6.65% NOTES DUE OCTOBER 15, 2001
$400,000,000 7.45% NOTES DUE OCTOBER 15, 2009
1. The initial public offering price of the 6.65% Notes due
October 15, 2001 and the 7.45% Notes due October 15, 2009 shall be 99.931% and
99.869%, respectively, of the principal amount thereof, plus accrued interest,
if any, from the date of issuance.
2. The purchase price to be paid by the Underwriters for the
6.65% Notes due October 15, 2001 and the 7.45% Notes due October 15, 2009 shall
be 99.681% and 99.219%, respectively, of the principal amount thereof.
3. The interest rate on the 6.65% Notes due October 15, 2001
and the 7.45% Notes due October 15, 2009 shall be 6.65% and 7.45%, respectively,
per annum.
<PAGE> 1
EXHIBIT 4.2
OFFICERS' CERTIFICATE PURSUANT TO
SECTIONS 102 AND 301 OF THE INDENTURE
The undersigned officers of The Times Mirror Company, a Delaware
corporation (the "Company"), pursuant to the authority granted such officers
pursuant to resolutions adopted by the Board of Directors of the Company on
October 9, 1997 and September 3, 1999, hereby establish two series of the
Company's Securities (as provided for in the Indenture (the "Indenture"), dated
as of March 19, 1996, between the Company and Citibank, N.A., as trustee (the
"Trustee"), as supplemented by that First Supplemental Indenture dated as of
October 19, 1999), designated as the "6.65% Notes due October 15, 2001" and the
"7.45% Notes due October 15, 2009", respectively, and hereby certify, pursuant
to Sections 102 and 301 of the Indenture, as follows (capitalized terms used but
not defined herein shall have the meanings ascribed thereto in the Indenture):
1. Attached hereto as Annex A is a true and correct copy of a specimen
Form of Notes representing the 6.65% Notes due October 15, 2001 (the "6.65%
Notes"). Attached hereto as Annex B is a true and correct copy of a specimen
Form of Notes representing the 7.45% Notes due October 15, 2009 (the "7.45%
Notes"; collectively with the 6.65% Notes, the "Securities"). The Form of Notes
attached as Annex A and the Form of Notes attached as Annex B are referred to
collectively as the "Forms of Notes." The attached Forms of Notes set forth
certain terms required to be set forth in this Officers' Certificate pursuant to
Section 301 of the Indenture, and said terms in the Form of Notes attached
hereto as Annex A and in the Form of Notes attached hereto as Annex B are
incorporated herein by reference with respect to the 6.65% Notes and the 7.45%
Notes, respectively.
2. The limit upon the aggregate principal amounts of the 6.65% Notes and
the 7.45% Notes that may be authenticated and delivered under the Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Sections
304, 305, 306, 906 or 1107 of the Indenture and except for any Securities that,
pursuant to Section 303 of the Indenture, are deemed never to have been
authenticated and delivered under the Indenture) are $200,000,000 and
$400,000,000, respectively.
3. The principal of the 6.65% Notes and the 7.45% Notes shall be payable
on October 15, 2001 and October 15, 2009, respectively, subject, in the case of
the 7.45% Notes, to certain redemption provisions as set forth in the attached
Forms of Notes.
4. The 6.65% Notes and the 7.45% Notes shall bear interest at a rate of
6.65% per annum and 7.45% per annum, respectively. Interest on the Securities
will accrue from October 19, 1999. Interest on the Securities shall be payable
on the Interest Payment Dates of April 15 and October 15 of each year,
commencing April 15, 2000. The Regular Record Dates for the Securities for the
interest payable shall be the April 1 or October 1, respectively, immediately
preceding such April 15 and October 15.
<PAGE> 2
5. The issue prices to the public for the 6.65% Notes and the 7.45%
Notes (as a percentage of the principal amount of such Securities) are 99.931%
and 99.869%, respectively, plus accrued interest, if any, from October 19, 1999.
6. The Underwriters' commissions/discounts on the 6.65% Notes and the
7.45% Notes (as a percentage of the principal amount of such Securities) are
0.250% and 0.650%, respectively.
7. Pursuant to Section 301 of the Indenture, provision is hereby made
that (a) the Securities are defeasible pursuant to (i) Section 1402 of the
Indenture, (ii) Section 1403 of the Indenture and (iii) Section 1407 of the
Indenture and (b) Section 1008 of the Indenture shall be applicable to the
Securities.
8. The Securities will be issued only in fully registered form in
denominations of $1,000 and integral multiples thereof.
9. (a) The 7.45% Notes due October 15, 2009 will be redeemable, in whole
or in part, at the Company's option at any time. The Redemption Price for the
7.45% Notes to be redeemed will equal the greater of:
(i) 100% of the principal amount of such 7.45% Notes; and
(ii) as determined by an Independent Investment Banker (as defined
below), the sum of the present values of the remaining scheduled
payments of principal and interest thereon (not including any
portion of such payments of interest accrued as of the
Redemption Date) discounted to the Redemption Date on a
semiannual basis at the Adjusted Treasury Rate (as defined
below), plus, in each case, accrued interest thereon to the
Redemption Date. The Redemption Price will be calculated
assuming a 360-day year consisting of twelve 30-day months.
(b) The following defined terms apply for purposes of this
Officers' Certificate and the Securities:
"Adjusted Treasury Rate" means, with respect to any Redemption Date, the
rate per annum equal to (A) the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date, plus (B) 15 basis points.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the 7.45% Notes to be redeemed that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such 7.45% Notes.
"Comparable Treasury Price" means, with respect to any Redemption Date
(A) the Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and
2
<PAGE> 3
lowest such Reference Treasury Dealer Quotations, or (B) if the Trustee obtains
fewer than three such Reference Treasury Dealer Quotations, the average of all
such Quotations.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Company.
"Reference Treasury Dealer" means each of Goldman, Sachs & Co., Salomon
Smith Barney Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan
Stanley & Co. Incorporated and their respective successors; provided, however,
that if any of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Company
will substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. (New York
City time) on the third Business Day preceding such Redemption Date.
10. The Securities will be Registered Securities represented by one or
more Global Securities. Each Global Security will be deposited with, or on
behalf of, The Depository Trust Company ("DTC"), and be registered in the name
of DTC or its nominee. Except under certain limited circumstances described
below, the Securities will not be issued in definitive form. As long as DTC or
its nominee is the registered owner of a Global Security, DTC or its nominee, as
the case may be, will be considered the sole owner or holder of the Securities
represented by that Global Security for all purposes under the Indenture.
Principal and interest payments on Securities registered in the name of DTC or
its nominee will be made to DTC or its nominee, as the case may be, as the
registered owner of the relevant Global Security. If DTC is at any time
unwilling or unable to continue as depository with respect to any Global
Security and the Company does not appoint a successor depository within 90 days,
the Company will issue Securities in definitive form in exchange for the entire
Global Security. In addition, the Company may at any time and in its sole
discretion determine not to have the Securities represented by a Global Security
and, in such event, will issue Securities in definitive form in exchange for the
entire Global Security. In any such instance, an owner of a beneficial interest
in a Global Security will be entitled to physical delivery of Securities in
definitive form represented by such Global Security equal in principal amount to
such beneficial interest and to have such Securities registered in its name.
Securities issued in definitive form will be issued as registered Securities in
denominations of $1,000 and integral multiples thereof, unless otherwise
specified by the Company.
11. (a) The following defined terms apply for purposes of this Officers'
Certificate and the Securities:
"1995 Debentures" means the Company's 7 1/2% Debentures due July 1, 2023
and the Company's 7 1/4% Debentures due March 1, 2013, both issued under the
1995 Indenture.
3
<PAGE> 4
"1995 Indenture" means the Indenture, dated January 30, 1995, by and
between the Company and The Bank of New York, as successor trustee, as amended,
supplemented or otherwise modified from time to time.
"Principal Property" shall have the meaning set forth from time to time
in the 1995 Indenture. Under the 1995 Indenture as in effect on the date hereof,
the term "Principal Property" means "any manufacturing plant or facility located
within the United States of America (other than its territories or possessions)
and owned by the Company or any Subsidiary, except such plant or facility which,
in the opinion of the Board of Directors of the Company, is not of material
importance to the business conducted by the Company and its Subsidiaries, taken
as a whole."
"Restricted Subsidiary" shall have the meaning set forth from time to
time in the 1995 Indenture. Under the 1995 Indenture as in effect on the date
hereof, the term "Restricted Subsidiary" means "any Subsidiary which owns or
leases a Principal Property."
"Subsidiary" and "Voting Shares" shall have the meanings set forth from
time to time in the 1995 Indenture. Under the 1995 Indenture as in effect on the
date hereof, the term "Subsidiary" means "any corporation a majority of the
Voting Shares of which is at the time owned directly or indirectly by the
Company and its other Subsidiaries" and the term "Voting Shares" means
"outstanding shares of capital stock having voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power because of default in dividends or other default."
(b) The following covenant shall be applicable to the Securities, and
any default in the performance, or breach, thereof shall constitute an Event of
Default for the Securities under the Indenture:
Covenant to Secure Notes Equally. The Company will not, nor will
it permit any Subsidiary to, secure any of the 1995 Debentures by
mortgage, pledge, lien or other encumbrance (mortgages, pledges, liens
and other encumbrances being hereinafter called "mortgage" or
"mortgages") upon any Principal Property or on any shares of stock or
indebtedness of any Restricted Subsidiary (whether such Principal
Property, shares of stock or indebtedness is now owned or hereafter
acquired) without in any such case effectively providing, concurrently
with such mortgage in favor of the 1995 Debentures, that the Securities
(together with, if the Company shall so determine, any other
indebtedness of or guaranteed by the Company or such Restricted
Subsidiary ranking equally with the Securities then existing or
thereafter created) shall be secured equally and ratably with the 1995
Debentures so long as any of the 1995 Debentures shall be so secured;
provided, that if the 1995 Debentures are no longer secured by such
Principal Property, shares of stock or indebtedness (whether as a result
of a repayment of the 1995 Debentures, voluntary release or otherwise),
then, upon delivery to
4
<PAGE> 5
the Trustee of an Officers' Certificate to that effect, any mortgage on
such Principal Property, shares of stock or indebtedness in favor of the
Securities shall be reconveyed, released and terminated. In the event
that the 1995 Debentures shall no longer be outstanding whether by
discharge, defeasance or otherwise, then, upon delivery to the Trustee
of an Officers' Certificate to that effect, this covenant shall
immediately cease to be applicable to the Securities (provided that if
this covenant requires the release of any mortgage securing the
Securities, this covenant shall remain in effect solely for the purpose
of effecting such release).
(c) An Event of Default (the "Additional Event of Default") shall exist
for the Securities under the Indenture if an Event of Default (as defined in the
1995 Indenture) has occurred and is continuing as a result of a breach of any
covenant set forth in Section 1006 or Section 1007 of the 1995 Indenture as such
covenants are in effect from time to time. Any such Event of Default under the
1995 Indenture which is waived by the requisite holders of the 1995 Debentures,
or which is cured, shall no longer be continuing for purposes of the Securities
and the Indenture. In the event that the 1995 Debentures shall no longer be
outstanding whether by discharge, defeasance or otherwise, or if Section 1006
and Section 1007 are eliminated from the 1995 Indenture, then, upon delivery to
the Trustee of an Officers' Certificate to that effect, the Additional Event of
Default established by this Officers' Certificate for the Securities under the
Indenture shall thereupon be eliminated.
12. Each of the undersigned officers further states that he or she has
read the provisions of such Indenture setting forth the conditions precedent to
the issuance, authentication and delivery of the Securities and the definitions
relating thereto, the board resolutions authorizing the issuance of the
Securities and the Forms of Notes; that the statements made in this Officers'
Certificate are based upon the examination of the provisions of such Indenture,
the board resolutions, the Forms of Notes and the relevant books and records of
the Company; that he or she has, in his or her opinion, made such examination or
investigation as is necessary to enable him or her to express an informed
opinion as to whether or not the conditions for the issuance, authentication and
delivery of the Securities have been satisfied; and that, in his or her opinion,
such conditions have been satisfied.
This Officers' Certificate shall constitute evidence of, and shall be,
action by the undersigned Vice President and Treasurer as one of the officers
designated in the above-referenced resolutions, determining and setting the
specific terms of the Securities as set forth herein and in the Forms of Notes.
5
<PAGE> 6
The undersigned Senior Vice President and Controller, by execution of
this Officers' Certificate, hereby certifies the actions taken by the
undersigned Vice President and Treasurer in determining and setting the specific
terms of the Securities.
IN WITNESS WHEREOF, said officers have signed this certificate.
Dated: October 19, 1999
By: /s/ ROGER MOLVAR By: /s/ RAJENDER CHANDHOK
-------------------------------- -------------------------------------
Roger Molvar Rajender Chandhok
Senior Vice President and Controller Vice President and Treasurer
6
<PAGE> 7
ANNEX A
THE TIMES MIRROR COMPANY
6.65% NOTE DUE OCTOBER 15, 2001
CUSIP No. 887364 AG2
No. $
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR
REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY
PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH
TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE OFFICERS' CERTIFICATE ESTABLISHING THE TERMS OF THIS
SECURITY UNDER THE INDENTURE. EVERY SECURITY AUTHENTICATED AND
DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN
LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
THE TIMES MIRROR COMPANY, a Delaware corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO. or registered assigns, the principal sum of ___________________ Dollars
($___________) on October 15, 2001, and to pay interest thereon from October 19,
1999 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on April 15 and October 15 in each
year, commencing April 15, 2000, at the rate of 6.65% per annum, until the
principal hereof is paid or made available for payment. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the April 1 or
October 1 (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date.
Payment of the principal of (and premium, if any) and interest on this
Security will be made in immediately available funds at the office or agency of
the Company maintained for that purpose in the Borough of Manhattan in the City
of New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts.
<PAGE> 8
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
2
<PAGE> 9
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: October 19, 1999
THE TIMES MIRROR COMPANY
By:
-------------------------------------
Attest:
--------------------------
This is one of the Securities of a series designated pursuant to the
within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By:
-------------------------------------
Authorized Signatory
3
<PAGE> 10
[Reverse]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of March 19, 1996, and all indentures
supplemental thereto, including the First Supplemental Indenture dated as of
October 19, 1999 (together herein called the "Indenture"), between the Company
and Citibank, N.A., as Trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture). Reference is hereby made to the
Indenture and to an Officers' Certificate delivered to the Trustee establishing
the terms of the Securities of this series under the Indenture for statements of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $200,000,000.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver shall be conclusive
and binding upon the Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
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<PAGE> 11
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, places and rates, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Trustee in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his or
her attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of the Securities of this series, (ii) certain restrictive
covenants and certain Events of Default applicable to the Securities of this
series and (iii) primary liability for the payment of the principal (or a
portion of the principal) of the Securities of this series, in each case upon
compliance by the Company with certain conditions set forth in the Indenture.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities of this series and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such
5
<PAGE> 12
numbers either as printed on the Securities or as contained in any notice of
redemption, and reliance may be placed only on the other identification numbers
placed thereon.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
6
<PAGE> 13
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Security)
FOR VALUE RECEIVED ___________________________ hereby sells, assigns
and transfers unto _____________________________________________________ this
Security, together with all right, title and interest herein, and does hereby
irrevocably constitute and appoint ____________________________ Attorney to
transfer this Security on the Security Register, with full power of
substitution.
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE:_______________________
PLEASE PRINT NAME AND ADDRESS OF TRANSFEREE:
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
Dated:
Signature of Holder: __________________ Signature Guaranteed: __________________
NOTICE: The signature to the foregoing Assignment must correspond to the name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
7
<PAGE> 14
ANNEX B
THE TIMES MIRROR COMPANY
7.45% NOTE DUE OCTOBER 15, 2009
CUSIP No. 887364 AH0
No. $
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR
REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY
PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH
TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE OFFICERS' CERTIFICATE ESTABLISHING THE TERMS OF THIS
SECURITY UNDER THE INDENTURE. EVERY SECURITY AUTHENTICATED AND
DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN
LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
THE TIMES MIRROR COMPANY, a Delaware corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of __________________ Dollars
($___________) on October 15, 2009, and to pay interest thereon from October 19,
1999 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on April 15 and October 15 in each
year, commencing April 15, 2000, at the rate of 7.45% per annum, until the
principal hereof is paid or made available for payment. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the April 1 or
October 1 (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date.
Payment of the principal of (and premium, if any) and interest on this
Security will be made in immediately available funds at the office or agency of
the Company maintained for that purpose in the Borough of Manhattan in the City
of New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts.
<PAGE> 15
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
2
<PAGE> 16
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: October 19, 1999
THE TIMES MIRROR COMPANY
By:
-------------------------------------
Attest:
----------------------------
This is one of the Securities of a series designated pursuant to the
within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By:
-------------------------------------
Authorized Signatory
3
<PAGE> 17
[Reverse]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of March 19, 1996, and all indentures
supplemental thereto, including the First Supplemental Indenture dated as of
October 19, 1999 (together herein called the "Indenture"), between the Company
and Citibank, N.A., as Trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture). Reference is hereby made to the
Indenture and to an Officers' Certificate delivered to the Trustee establishing
the terms of the Securities of this series under the Indenture for statements of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $400,000,000.
The Securities of this series are subject to redemption upon not less
than 30 nor more than 60 days' notice by mail, at any time, as a whole or in
part, at the election of the Company, at a Redemption Price equal to the greater
of (i) 100% of the principal amount of such Securities or (ii) as determined by
an Independent Investment Banker, the sum of the present values of the remaining
scheduled payments of principal and interest thereon (not including any portion
of such payments of interest accrued as of the Redemption Date) discounted to
the Redemption Date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus, in each case, accrued
interest thereon to the Redemption Date.
"Adjusted Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to (A) the semiannual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date, plus (B) 15 basis points.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities to be redeemed that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(A) the Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Company.
"Reference Treasury Dealer" means each of Goldman, Sachs & Co., Salomon
Smith Barney Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan
Stanley & Co.
4
<PAGE> 18
Incorporated and their respective successors; provided, however, that if any of
the foregoing shall cease to be a primary U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer"), the Company shall substitute
therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. (New York
City time) on the third Business Day preceding such Redemption Date.
Unless the Company defaults in the payment of the Redemption Price, on
and after the Redemption Date, interest will cease to accrue on the Securities
or portions thereof called for redemption. Interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Regular Record Dates referred to on the face
hereof, all as provided in the Indenture.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver shall be conclusive
and binding upon the Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal
5
<PAGE> 19
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, places and rates, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Trustee in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his or
her attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of the Securities of this series, (ii) certain restrictive
covenants and certain Events of Default applicable to the Securities of this
series and (iii) primary liability for the payment of the principal (or a
portion of the principal) of the Securities of this series, in each case upon
compliance by the Company with certain conditions set forth in the Indenture.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
6
<PAGE> 20
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities of this series and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption, and reliance may be
placed only on the other identification numbers placed thereon.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
7
<PAGE> 21
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Security)
FOR VALUE RECEIVED ___________________________ hereby sells, assigns
and transfers unto _____________________________________________________ this
Security, together with all right, title and interest herein, and does hereby
irrevocably constitute and appoint ____________________________ Attorney to
transfer this Security on the Security Register, with full power of
substitution.
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE:_______________________
PLEASE PRINT NAME AND ADDRESS OF TRANSFEREE:
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
Dated:
Signature of Holder: __________________ Signature Guaranteed: __________________
NOTICE: The signature to the foregoing Assignment must correspond to the name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
8
<PAGE> 1
EXHIBIT 4.3
-----------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of October 19, 1999
SUPPLEMENTING AND AMENDING
THE
INDENTURE
Dated as of March 19, 1996
Between
THE TIMES MIRROR COMPANY
AND
CITIBANK, N.A.,
as Trustee
-----------------------------
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE (this "Supplement"), dated as of October
19, 1999, between The Times Mirror Company, a Delaware corporation (the
"Company"), and Citibank, N.A. , a national banking association duly
incorporated and existing under the laws of the United States of America, as
trustee (the "Trustee").
RECITALS OF THE COMPANY
A. The Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of March 19, 1996 (hereinafter sometimes referred
to as the "Indenture"), providing for the issuance from time to time of the
Company's unsecured debentures, notes or other evidence of indebtedness (herein
called the "Securities"), to be issued in one or more series upon the terms and
conditions set forth therein. All capitalized terms used in this Supplement and
not defined herein shall have the meanings specified in the Indenture.
B. The Company has heretofore issued Securities under the
Indenture in the following series:
(1) 4 1/4% Premium Equity Participating Securities due March 15, 2001;
(2) 7 1/4% Debentures due November 15, 2096; and
(3) 6.61% Debentures due September 15, 2027
(the "Existing Securities").
C. Section 901 of the Indenture provides that the Company,
when authorized by a Board Resolution, and the Trustee may enter into one or
more indentures supplemental thereto to make any change that does not adversely
affect the legal rights thereunder of any Holder.
D. The Company and the Trustee desire to enter into this
Supplement, pursuant to Section 901 of the Indenture, to allow the Company to
elect, pursuant to Section 301 of the Indenture, to provide that any series of
the Securities issued after the date hereof may be subject to De-recognition
Defeasance (as defined in this Supplement).
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is mutually covenanted and agreed, as follows:
SECTION 1. The changes, modifications and supplements to the
Indenture affected by this Supplement shall be applicable only with respect to,
and govern the terms of,
<PAGE> 3
Securities hereafter authenticated and delivered under the Indenture (and all
Holders of such Securities shall be deemed to have consented to such changes,
modifications and supplements) and shall not apply to the Existing Securities
unless a separate supplemental indenture with respect to such Existing
Securities specifically incorporates such changes, modifications and
supplements.
SECTION 2. Section 101 of the Indenture is hereby amended by
adding the following definitions:
"Assigned Rights" has the meaning specified in Section 1404.
"Defeased Portion" has the meaning specified in Section 1401.
"Defeasance Termination" means an election by the Company to terminate
its prior exercise of the de-recognition defeasance option pursuant to Section
1404.
"De-recognition Defeasance" has the meaning specified in Section 1407.
"Escrow Account" means the assets deposited with the Escrow Agent by
the Company pursuant to Section 1404.
"Escrow Agent" means any Person authorized by the Company to serve as
escrow agent and shall also include its successors and assigns; provided that
any such Person or its successor shall satisfy the requirements of Section 609
as if such Escrow Agent were to serve as Trustee; and if at any time there is
more than one Person acting as Escrow Agent hereunder, "Escrow Agent" as used
with respect to the Securities of any series shall mean each Escrow Agent with
respect to Securities of that series. The Escrow Agent shall act pursuant to an
escrow agreement which shall be established in connection with a De-recognition
Defeasance, under which the Escrow Agent shall be obligated to hold the assets
in the Escrow Account, including, without limitation, cash, securities or
Assigned Rights, and to hold and apply such assets and the proceeds thereof in
accordance with the applicable provisions of Sections 1404 and 1407.
"Principal Deposit Date" means, in respect of any Security of a series
with respect to which the Company has made an election under Section 1401 to
defease all or part of the principal of such series pursuant to Section 1407,
that date that is the earlier of (i) three (3) Business Days prior to the Stated
Maturity for the payment of principal, or an installment of principal, of such
Security or (ii) the date on which the principal of the Security has become due
and payable pursuant to Section 502.
SECTION 3. Section 1401 of the Indenture is hereby amended to
read in its entirety as follows:
2
<PAGE> 4
Section 1401. Company's Option to Effect Defeasance, Covenant Defeasance or
De-recognition Defeasance.
The Company may elect, at its option by either Board
Resolution or an Officers' Certificate at any time, to have any of Section 1402,
Section 1403 or Section 1407 applied to the Outstanding Securities of any series
designated pursuant to Section 301 as being defeasible pursuant to this Article
Fourteen (hereinafter called a "Defeasible Series"), upon compliance with the
conditions set forth below in this Article Fourteen. The Company may elect to
have Section 1407 applied to all or a portion of the principal of the
Outstanding Securities of a Defeasible Series. In the event the Company elects
to have Section 1407 applied to a portion of the principal of the Outstanding
Securities of a series, the portion (the "Defeased Portion") shall be set forth
in the Board Resolution or Officers' Certificate, as applicable, effecting such
partial De-recognition Defeasance, and the principal of each Outstanding
Security of such series shall be deemed to be subject to De-recognition
Defeasance on a pro rata basis.
SECTION 4. Section 1404 of the Indenture is hereby amended to
read in its entirety as follows:
Section 1404. Conditions to Defeasance, Covenant Defeasance or
De-recognition Defeasance.
The following shall be the conditions to application of any of
Section 1402, Section 1403 or Section 1407 to the Outstanding Securities of any
Defeasible Series:
(1) In the case of an election to effect Defeasance under
Section 1402 or Covenant Defeasance under Section 1403, the Company
shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee that satisfies the requirements
contemplated by Section 609 and agrees to comply with the provisions of
this Article Fourteen applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
Outstanding Securities of such series, (A) money in an amount, or (B)
U.S. Government Obligations that through the scheduled payment of
principal and interest in respect thereof (without consideration of any
reinvestment thereof) in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and that shall be applied by the
Trustee (or any such other qualifying trustee) to pay and discharge,
the principal of and any premium and interest on the Securities of such
series on the respective Stated Maturities, in accordance with the
terms of this Indenture and the Securities of such series. As used
herein, "U.S. Government Obligation" means (x) any security that is
3
<PAGE> 5
(i) a direct obligation of the United States of America for the payment
of which the full faith and credit of the United States of America is
pledged or (ii) an obligation of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended)
as custodian with respect to any U.S. Government Obligation specified
in Clause (x) and held by such custodian for the account of the holder
of such depositary receipt, or with respect to any specific payment of
principal of or interest on any such U.S. Government Obligation;
provided, however, that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.
In the case of an election to effect De-recognition Defeasance
under Section 1407, the Company shall, subject to the next succeeding
sentence, irrevocably have deposited or caused to be deposited with the
Escrow Agent assets to be held in the Escrow Account for the benefit of
the Holders of Outstanding Securities of such series sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Escrow Agent, to pay and discharge the principal of the Outstanding
Securities of such series (or in the case of an election to effect a
partial De-recognition Defeasance, to pay and discharge the Defeased
Portion of such principal) on the Principal Deposit Date in accordance
with this Indenture, assuming the economic benefits of such assets are
realized in accordance with their terms; provided that such assets
deposited with the Escrow Agent must consist of financial assets
limited to (i) U.S. Government Obligations, (ii) debt securities issued
by one or more U.S. government-sponsored enterprises, (iii) other debt
securities that are rated at the time of deposit Aaa by Moody's
Investor Services and AAA by Standard & Poor's Rating Services, and
(iv) contracts under which the Escrow Agent has a right to receive
payments from a financial counterparty which payments are secured by a
pledge of any of the foregoing securities ("Assigned Rights"). The
Company shall have the right to exchange all or a portion of the assets
held by the Escrow Agent in the Escrow Account for the benefit of the
Holders of a series of Securities for any other assets meeting the
requirements of the immediately preceding sentence, provided that after
giving effect to such exchange the assets in the Escrow Account are
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Escrow Agent, to pay and discharge the
principal of the Outstanding Securities of such series (or in the case
of an election to effect a partial De-recognition Defeasance, to pay
and discharge the Defeased Portion of such principal) on the Principal
Deposit Date in accordance with this Indenture, assuming
4
<PAGE> 6
the economic benefits of such assets are realized in accordance with
their terms, provided that the Company shall not have any obligation to
exchange or substitute any assets held in the Escrow Account which met
the requirements of the immediately preceding sentence when deposited.
With respect to any series of Securities as to which
De-recognition Defeasance has been elected, if prior to the Principal
Deposit Date for such Securities (i) the Company receives notice that a
material amount of the assets held by the Escrow Agent in the Escrow
Account in respect of such Securities is impaired as to performance or
expected payments, (ii) in the case of assets consisting of Assigned
Rights, the relevant financial contracts have been terminated or
modified according to their terms so as to materially reduce the
expected payments to be received by the Escrow Agent, or (iii) the
Company redeems all or part of the Securities of such series pursuant
to Article Eleven, the Company may notify the Trustee of a Defeasance
Termination, in which case the provisions of Section 1407(4) will apply
with respect to such Securities.
(2) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date first set forth
hereinabove, there has been a change in the applicable Federal income
tax law, in either case (A) or (B) to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to the Securities of such series
and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.
(3) In the case of an election under Section 1403 or Section
1407, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Outstanding Securities of
such series will not recognize income, gain or loss for Federal income
tax purposes as a result of the deposit and Covenant Defeasance or
De-recognition Defeasance to be effected with respect to the Securities
of such series and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be the case
if such deposit and Covenant Defeasance or De-recognition Defeasance
were not to occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such series,
if then listed on any securities exchange, will not be delisted as a
result of such deposit.
5
<PAGE> 7
(5) No Event of Default or event that (after notice or lapse
of time or both) would become an Event of Default shall have occurred
and be continuing at the time of such deposit or, with regard to any
Event of Default or any such event specified in Sections 501(6) and
(7), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(6) Such Defeasance, Covenant Defeasance or De-recognition
Defeasance shall not cause the Trustee to have a conflicting interest
within the meaning of the Trust Indenture Act (assuming all Securities
are in default within the meaning of such Act).
(7) Such Defeasance, Covenant Defeasance or De-recognition
Defeasance shall not result in a breach or violation of, or constitute
a default under, any other agreement or instrument to which the Company
is a party or by which it is bound.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance, Covenant
Defeasance or De-recognition Defeasance have been complied with.
(9) Such Defeasance, Covenant Defeasance or De-recognition
Defeasance shall not result in the trust arising from such deposit
constituting an investment company within the meaning of the Investment
Company Act of 1940, as amended, unless such trust shall be qualified
under such Act or exempt from regulation thereunder.
SECTION 5. A new Section 1407 is hereby added to the Indenture
to read in its entirety as follows:
Section 1407. De-recognition Defeasance.
Upon the Company's exercise of the option provided in Section 1401 to
have this Section 1407 apply to the Outstanding Securities of any Defeasible
Series, and satisfaction of the conditions applicable to De-recognition
Defeasance set forth in Section 1404, the Company shall be deemed to be released
from primary liability for the payment of the principal (or, in the case of a
partial De-recognition Defeasance, the Defeased Portion of such principal) of
any Outstanding Securities of a series with respect to which such election has
been made. For this purpose, "De-recognition Defeasance" means that, with
respect to any Outstanding Securities of such series,
(1) on the Principal Deposit Date, unless the Trustee previously
has received notification of a Defeasance Termination, the
Trustee shall make demand on the Escrow Agent to, and the
Escrow Agent shall, deposit with the Trustee,
6
<PAGE> 8
irrevocably, any and all cash or securities held in the Escrow
Account. In the event that the Escrow Agent holds assets other
than cash, the Escrow Agent shall, pursuant to the terms of
the escrow, sell such assets for cash or, in the case of
assets consisting of Assigned Rights, shall realize on and
sell for cash the assets pledged as security, and shall
irrevocably deposit the proceeds therefrom with the Trustee.
The Trustee shall, for the benefit of the Holders of such
Securities, hold such cash until the earlier of (a) the Stated
Maturity of such Securities or (b) the date on which the
principal of the Securities has become due and payable
pursuant to Section 502;
(2) in the case of default with respect to the deposit with the
Trustee by the Escrow Agent of the assets held in the Escrow
Account, unless the Trustee previously has received
notification of a Defeasance Termination, the Trustee shall
have the right to proceed against the Escrow Agent and shall
have the right to exercise any rights of the Escrow Agent in
respect of such assets, including rights to realize on assets
pledged as collateral pursuant to assets consisting of
Assigned Rights; provided that neither the Trustee nor any
Holder shall be entitled to proceed against the Company for
payment of the principal amount (or, in the case of a partial
De-recognition Defeasance, the Defeased Portion of such
principal amount) of such Securities prior to such time as a
demand is required to be made on the Escrow Agent as provided
in Section 1407(1);
(3) the Company shall be liable for the payment of the principal
(or, in the case of a partial De-recognition Defeasance, the
Defeased Portion of such principal) of such Securities to the
extent such principal remains unpaid (a "Deficiency Amount")
on the earlier of (a) the Stated Maturity of such Securities
or (b) the date on which the principal of the Securities has
become due and payable pursuant to Section 502. Under no
circumstances will the Trustee or the Escrow Agent be liable
for the adequacy of the sales price realized in respect of any
assets held in the Escrow Account (whether held directly or as
collateral pursuant to Assigned Rights); and
(4) if the Company notifies the Trustee of a Defeasance
Termination pursuant to Section 1404 with respect to any such
Securities,
(a) the Company shall be entitled to withdraw any
remaining assets held in the Escrow Account in
respect of such Securities;
(b) the provisions of subsections (1) - (3) of this
Section 1407 shall cease to have any further force or
effect with respect to such Securities; and
(c) the Company shall become primarily obligated to pay
the full principal of such Securities when due
thereon.
7
<PAGE> 9
Nothing in the Section shall be construed as impairing the rights of Holders
against the Company to institute suit for the enforcement of any payment of
principal or interest when due on any Security of a series with respect to which
an election has been made under this Section.
SECTION 6. The Trustee assumes no duties, responsibilities or
liabilities by reason of this Supplement other than as set forth in the
Indenture, and this Supplement is executed and accepted by the Trustee subject
to all terms and conditions of its acceptance of the trust under the Indenture,
as fully as if said conditions were hereby set forth at length. Without limiting
the generality of the foregoing, the Trustee assumes no responsibility as to the
validity of this Supplement.
SECTION 7. This Supplement and the amendments contemplated
hereby shall become effective on the date this Supplement is executed by the
Company and the Trustee pursuant to Section 901 of the Indenture.
SECTION 8. The Company and the Trustee shall cooperate with
one another and shall execute such other and further documents as may be
reasonably necessary or proper for the effectuation of the provisions of this
Supplement.
SECTION 9. In case any provision of this Supplement shall be
determined invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired by such determination.
SECTION 10. This Supplement modifies the Indenture only with
respect to Securities hereafter issued, authenticated and delivered under the
Indenture and shall not apply to the Existing Securities. The Indenture as so
modified shall be read, taken and construed as one and the same instrument, and
as such shall continue in full force and effect. Every Holder of Securities
hereafter issued, authenticated and delivered under the Indenture shall be bound
by the terms and provisions of this Supplement regardless of whether or not any
notation relating to the modification contained herein appears on the Security.
SECTION 11. This Supplement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all of such counterparts shall together constitute but one and the same
instrument.
SECTION 12. As provided in Section 112 of the Indenture, this
Supplement shall be construed in accordance with and governed by the internal
laws of the State of New York.
SECTION 13. Citibank, N.A. hereby accepts the modification of
the Indenture hereby affected and the trust in this Supplement declared and
provided, upon the terms and conditions hereinabove set forth.
8
<PAGE> 10
IN WITNESS WHEREOF, the parties hereto have caused this
Supplement to be duly executed as of the day and year first above written.
THE TIMES MIRROR COMPANY,
a Delaware corporation
By: /s/ RAJENDER CHANDHOK
-------------------------------------
Name: Rajender Chandhok
Title: Vice President and Treasurer
[SEAL]
Attest:
By: /s/ MICHAEL UDOVIC
---------------------------------
Name: Michael Udovic
Title: Assistant Secretary
CITIBANK, N.A., as Trustee
By: /s/ NANCY FORTE
-------------------------------------
Name: Nancy Forte
Title: Senior Trust Officer
[SEAL]
Attest:
By: /s/ WAFAA ORFY
---------------------------------
Name: Wafaa Orfy
Title: Assistant Vice President
9
<PAGE> 1
EXHIBIT 5.1
October 19, 1999
(213) 229-7000 91007-04043
The Times Mirror Company
Times Mirror Square
Los Angeles, California 90053
Re: Issuance and Sale of $200,000,000 Principal Amount of 6.65%
Notes Due October 15, 2001 and $400,000,000 Principal Amount
of 7.45% Notes Due October 15, 2009
Ladies and Gentlemen:
We have acted as counsel to The Times Mirror Company, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of $200,000,000 principal amount
of the Company's 6.65% Notes due October 15, 2001 and $400,000,000 principal
amount of the Company's 7.45% Notes due October 15, 2009 (collectively, the
"Notes"). The Notes are being issued pursuant to an Indenture (the "Original
Indenture"), dated as of March 19, 1996, between the Company and Citibank, N.A.,
as trustee, as supplemented and amended by the First Supplemental Indenture,
dated as of October 19, 1999 (the "First Supplemental Indenture," and together
with the Original Indenture, the "Indenture").
We have examined originals or certified copies of such corporate
records, certificates of officers of the Company and/or public officials and
such other documents, and have made such other factual and legal investigations,
as we have deemed relevant and necessary as the basis for the opinions set forth
below. In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals and the conformity to original documents of all
documents submitted to us as conformed or photostatic copies. In rendering this
opinion, we have further assumed the due and valid execution and delivery of the
Indenture by the Trustee and that the Indenture constitutes the legal, valid and
binding agreement of the Trustee.
<PAGE> 2
The Times Mirror Company
October 19, 1999
Page 2
Based on the foregoing and in reliance thereon, and subject to the
assumptions, exceptions, qualifications and limitations set forth below and
relying on the statements of fact contained in the documents we have examined,
we are of the opinion that (a) the Notes, upon the issuance thereof and timely
payment in full therefor in the manner described in the Indenture, the
Registration Statement on Form S-3 (File No. 333-38605) filed by the Company
with the Securities and Exchange Commission (the "Commission") on October 23,
1997, and the Registration Statement on Form S-3 (File No. 333-86807) filed by
the Company with the Commission on September 9, 1999, as amended by Amendment
No. 1 to Form S-3, filed by the Company with the Commission on October 4, 1999
(collectively, the "Registration Statement"), the Prospectus dated October 5,
1999, and the Prospectus Supplement dated October 14, 1999 describing the terms
of the Notes as issued, will be validly issued, fully paid and nonassessable and
(b) the Notes so issued will be legally binding obligations of the Company,
entitled to the benefits provided under the Indenture.
Our opinions set forth above are subject to the effect of (i)
applicable bankruptcy, reorganization, insolvency, moratorium and other similar
laws and court decisions of general application (including without limitation
statutory or other laws regarding fraudulent or preferential transfers) relating
to, limiting or affecting the enforcement of creditors' rights generally; (ii)
general principles of equity that may limit the enforceability of any of the
remedies, covenants or other provisions of the Notes and the Indenture and the
availability of injunctive relief or other equitable remedies; and (iii) the
application of principles of equity (regardless of whether enforcement is
considered in proceedings at law or in equity) as such principles relate to,
limit or affect the enforcement of creditors' rights generally.
In addition, without limiting the generality of the foregoing
paragraph, we express no opinion as to: (i) any provisions of the Notes or the
Indenture regarding the remedies available to any person (A) to take action that
is arbitrary, unreasonable or capricious or is not taken in good faith or in a
commercially reasonable manner, whether or not such action is permitted under
the Notes or the Indenture or (B) for violations or breaches that are determined
by a court to be non-material or without substantially adverse effect upon the
ability of the Company to perform its material obligations under the Notes or
the Indenture; or (ii) the provisions of the Notes or the Indenture that may
provide for interest on interest or penalty interest.
We are admitted to the Bar of the States of California and New York. In
addition, we are generally familiar with the Delaware General Corporation Law
and have made such investigation and review thereof as we consider necessary for
the purpose of rendering this opinion. This opinion is limited to the present
laws of the States of California and New York and the United States of America,
and, to the limited extent set forth above, the Delaware General Corporation
Law, to present judicial interpretations thereof and to facts as they presently
exist. We assume no obligation to revise or supplement this opinion should the
present facts change or the present laws of such jurisdictions be changed by
legislative action, judicial decision or otherwise.
<PAGE> 3
The Times Mirror Company
October 19, 1999
Page 3
We hereby consent to the filing of this opinion as an exhibit to the
Company's Current Report on Form 8-K and to the reference to our name under the
caption "Certain Legal Matters" in the prospectus which forms a part of the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Act or the General Rules and Regulations of the Securities and Exchange
Commission.
Very truly yours,
/s/ GIBSON, DUNN & CRUTCHER LLP
GIBSON, DUNN & CRUTCHER LLP
