Exhibit 99.2
THE NEW YORK TIMES
MEDIUM-TERM NOTES
CALCULATION AGENT AGREEMENT
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THIS AGREEMENT dated as of September 17, 2002 between The New
York Times Company (hereinafter called the "Issuer"), having its principal
office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and JPMorgan Chase
Bank, a New York banking corporation (hereinafter sometimes called the
"Calculation Agent" which term shall, unless the context shall otherwise
require, include its successors and assigns), having its principal corporate
trust office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS OF THE ISSUER
WHEREAS, the Issuer proposes to issue from time to time
medium-term notes (the "Notes") under the Indenture dated as of March 29,
1995, as supplemented by the First Supplemental Indenture dated as of August
21, 1998 and the Second Supplemental Indenture dated July 26, 2002 (the
"Indenture"), between the Issuer and JPMorgan Chase Bank (formerly known as
Chemical Bank), as Trustee. Capitalized terms used in this Agreement and not
otherwise defined herein are used as defined in the Indenture. Certain of the
Notes may bear interest at one of several floating rates determined by
reference to an interest rate formula (the "Floating Rate Notes") and the
Issuer desires to engage the Calculation Agent to perform certain services in
connection therewith.
NOW IT IS HEREBY AGREED THAT:
1. The Issuer hereby appoints JPMorgan Chase Bank as Calculation Agent for
the Floating Rate Notes, upon the terms and subject to the conditions herein
mentioned, and JPMorgan Chase Bank hereby accepts such appointment. The
Calculation Agent shall act as an
agent of the Issuer for the purpose of determining the interest rate or rates
of the Floating Rate Notes.
2. The Issuer agrees to deliver to the Calculation Agent, prior to the
issuance of any Floating Rate Notes, copies of the proposed forms of such
Notes, including copies of all terms and conditions relating to the
determination of the interest rate thereunder. The Issuer shall not issue any
Floating Rate Note prior to the receipt of confirmation from the Calculation
Agent of its acceptance of the proposed form of such Note. The Calculation
Agent hereby acknowledges its acceptance of the proposed form of Floating
Rate Note previously delivered to it.
3. The Issuer shall notify the Calculation Agent of the issuance of any
Floating Rate Notes prior to the issuance thereof and at the time of such
issuance, the Issuer shall deliver to the Calculation Agent the information
required to be provided by the Issuer for the calculation of the applicable
interest rates thereunder. The Calculation Agent shall calculate the
applicable interest rates for Floating Rate Notes in accordance with the
terms of such Notes, the Indenture and the provisions of this Agreement.
4. Promptly following the determination of each change to the interest rate
applicable to any Floating Rate Note, the Calculation Agent will cause to be
forwarded to the Issuer, the Trustee and the principal Paying Agent
information regarding the interest rate then in effect for such Floating Rate
Note.
5. The Issuer will pay such compensation as shall be agreed upon with the
Calculation Agent and the out-of-pocket expenses, including reasonable
counsel fees, incurred by the Calculation Agent in connection with its duties
hereunder, upon receipt of such invoices as the Issuer shall reasonably
require.
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6. Notwithstanding any satisfaction or discharge of the Notes or the
Indenture, the Issuer will indemnify the Calculation Agent against any
losses, liabilities, costs, claims, actions or demands which it may incur or
sustain or which may be made against it in connection with its appointment or
the exercise of its powers and duties hereunder as well as the reasonable
costs, including the reasonable expenses and fees of counsel in defending any
claim, action or demand, except such as may result from the gross negligence,
wilful misconduct or bad faith of the Calculation Agent or any of its
employees. Except as provided in the preceding sentence, the Calculation
Agent shall incur no liability and shall be indemnified and held harmless by
the Issuer for, or in respect of, any actions taken or suffered to be taken
in good faith by the Calculation Agent in reliance upon (i) the written
opinion or advice of counsel or (ii) written instructions from the Issuer.
7. The Calculation Agent accepts its obligations herein set forth upon the
terms and conditions hereof, including the following, to all of which the
Issuer agrees:
(i) in acting under this Agreement and in connection with the
Notes, the Calculation Agent, acting as agent for the Issuer, does not assume
any obligation towards, or any relationship of agency or trust for or with,
any of the Holders of the Notes;
(ii) unless herein otherwise specifically provided, any order,
certificate, notice, request or communication from the Issuer made or given
under any provisions of this Agreement shall be sufficient if signed by any
person whom the Calculation Agent reasonably believes to be a duly authorized
officer or attorney-in-fact of the Issuer;
(iii) the Calculation Agent shall be obligated to perform only
such duties as are set forth specifically herein and any duties necessarily
incidental thereto;
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(iv) except in the case of gross negligence, wilful misconduct
or bad faith, the Calculation Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted to be taken or
anything suffered by it in reliance upon anything contained in a Floating
Rate Note, the Indenture or any information supplied to it by the Issuer
pursuant to this Agreement, including the information to be supplied pursuant
to paragraph 3 above;
(v) the Calculation Agent, whether acting for itself or in any
other capacity, may become the owner or pledgee of Notes with the same rights
as it would have had if it were not acting hereunder as Calculation Agent;
(vi) the Calculation Agent shall incur no liability hereunder
except for loss sustained by reason of its gross negligence, wilful
misconduct or bad faith; and
(vii) in no event shall the Calculation Agent be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Calculation Agent
has been advised of the likelihood of such loss or damage and regardless of
the form of action.
8. (a) The Issuer agrees to notify the Calculation Agent at least 30 days
prior to the issuance of any Floating Rate Note with an interest rate to be
determined by any formula that would require the Calculation Agent to select
banks or other financial institutions (the "Reference Banks") for purposes of
quoting rates, provided however the Issuer need not give such 30 day notice
with respect to any Floating Rate Note with an interest rate to be determined
by a formula that provides for the Calculation Agent to select Reference
Banks only upon the occurrence of a contingency such as the unavailability of
a published reference rate. Promptly thereafter, the Calculation Agent will
notify the Issuer and the Trustee of the names and addresses of such
Reference Banks. Forthwith upon any change in the identity of the
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Reference Banks, the Calculation Agent shall notify the Issuer and the
Trustee of such change. The Calculation Agent shall not be responsible to the
Issuer or any third party for any failure of the Reference Banks to fulfill
their duties or meet their obligations as Reference Banks or as a result of
the Calculation Agent having acted, (except in the event of gross negligence,
wilful misconduct or bad faith) on any quotation or other information given
by any Reference Bank which subsequently may be found to be incorrect.
(b) Except as provided below, the Calculation Agent may at any time
resign as Calculation Agent by giving written notice to the Issuer and the
Trustee of such intention on its part, specifying the date on which its
desired resignation shall become effective, provided that such notice shall
be given not less than 60 days prior to the said effective date unless the
Issuer and the Trustee otherwise agree in writing. Except as provided below,
the Calculation Agent may be removed by the filing with it and the Trustee of
an instrument in writing signed by the Issuer specifying such removal. Any
such resignation or removal shall take effect upon:
(i) the appointment by the Issuer as hereinafter provided of a
successor Calculation Agent; and
(ii) the acceptance of such appointment by such successor
Calculation Agent; PROVIDED, HOWEVER, that the effective date of a removal
shall be no less than 20 days after the filing of the notice of removal with
the Calculation Agent and the Trustee; and PROVIDED FURTHER, that in the
event the Calculation Agent has given not less than 60 days' prior notice of
its desired resignation, and during such 60 days there has not been
acceptance by a successor Calculation Agent of its appointment as successor
Calculation Agent, the Calculation Agent so resigning may petition any court
of competent jurisdiction for the appointment of a successor Calculation
Agent. The Issuer covenants that it shall appoint a successor Calculation
Agent as soon as
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practicable after receipt of any notice of resignation hereunder. Upon its
resignation or removal becoming effective, the retiring Calculation Agent
shall be entitled to the payment of its compensation and the reimbursement of
all expenses (including reasonable counsel fees) incurred by such retiring
Calculation Agent pursuant to paragraph 5 hereof to the date such resignation
or removal becomes effective.
(c) If at any time the Calculation Agent shall resign or be removed, or
shall become incapable of acting or shall be adjudged bankrupt or insolvent,
or liquidated or dissolved, or an order is made or an effective resolution is
passed to wind up the Calculation Agent, or if the Calculation Agent shall
file a voluntary petition in bankruptcy or make an assignment for the benefit
of its creditors, or shall consent to the appointment of a receiver,
administrator or other similar official of all or any substantial part of its
property, or shall admit in writing its inability to pay or meet its debts as
they mature, or if a receiver, administrator or other similar official of the
Calculation Agent or of all or any substantial part of its property shall be
appointed, or if any order of any court shall be entered approving any
petition filed by or against the Calculation Agent under the provisions of
any applicable bankruptcy or insolvency law, or if any public officer shall
take charge or control of the Calculation Agent or its property or affairs
for the purpose of rehabilitation, conservation or liquidation, then a
successor Calculation Agent shall be appointed by the Issuer by an instrument
in writing filed with the successor Calculation Agent and the Trustee. Upon
the appointment as aforesaid of a successor Calculation Agent and acceptance
by the latter of such appointment the former Calculation Agent shall cease to
be Calculation Agent hereunder.
(d) Any successor Calculation Agent appointed hereunder shall execute
and deliver to its predecessor, the Issuer and the Trustee an instrument
accepting such appointment
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hereunder, and thereupon such successor Calculation Agent, without any
further act, deed or conveyance, shall become vested with all the authority,
rights, powers, immunities, duties and obligations of such predecessor with
like effect as if originally named as the Calculation Agent hereunder, and
such predecessor, upon payment of its compensation, charges and disbursements
then unpaid, shall thereupon become obliged to transfer and deliver, and such
successor Calculation Agent shall be entitled to receive, copies of any
relevant records maintained by such predecessor Calculation Agent.
(e) Any corporation into which the Calculation Agent may be merged or
converted or any corporation with which the Calculation Agent may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Calculation Agent shall be a party shall, to the
extent permitted by applicable law, be the successor Calculation Agent under
this Agreement without the execution or filing of any paper or any further
act on the part of any of the parties hereto. Notice of any such merger,
conversion or consolidation shall forthwith be given to the Issuer and the
Trustee.
(f) The provisions of paragraphs 5 and 6 shall survive any resignation
or removal hereunder or termination hereof.
9. Any notice required to be given hereunder shall be delivered in person
against written receipt, sent by letter or telecopy or communicated by
telephone (subject, in the case of communication by telephone, to
confirmation dispatched within two business days by letter, or telecopy), in
the case of the Issuer, to it at the address set forth in the heading of this
Agreement, Attention: Treasurer, Telephone: (000) 000-0000, Telecopy: (212)
556-1646, with a copy to the Senior Vice President, Secretary and General
Counsel; in the case of the Calculation Agent, to it at the address set forth
in the heading of this Agreement, Attention:
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Institutional Trust Services, Telephone: (000) 000-0000, Telecopy: (212)
946-8159; in the case of the Trustee, to it at 000 Xxxx 00xx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Institutional Trust Services,
Telephone: (000) 000-0000, Telecopy: (000) 000-0000; or, in any case, to any
other address of which the party receiving notice shall have notified the
party giving such notice in writing.
10. This Agreement may be amended only by a writing duly executed and delivered
by each of the parties signing below.
11. The provisions of this Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
12. This Agreement may be executed in counterparts and the executed
counterparts shall together constitute a single instrument.
13. This Agreement replaces the Calculation Agent Agreement dated as of
September 24, 1998 between the parties hereto, which is hereby terminated
(without prejudice to the rights of the parties thereto pursuant to the terms
thereof). Notwithstanding the termination of said Calculation Agent
Agreement, the rights and obligations of the parties thereto under paragraphs
5 and 6 thereof shall survive.
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IN WITNESS WHEREOF, this Agreement has been executed and
delivered as of the day and year first above written.
THE NEW YORK TIMES COMPANY
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Assistant Secretary
JPMORGAN CHASE BANK
By /s/ X. Xxxxxxxx
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Name: X. Xxxxxxxx
Title: Assistant Vice President
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