Exhibit 10.3
THE NEW YORK TIMES
MEDIUM-TERM NOTES
CALCULATION AGENT AGREEMENT
THIS AGREEMENT dated as of September 24, 1998 between The New York
Times Company (hereinafter called the "Issuer"), having its principal office at
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and The Chase Manhattan 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 ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Recitals of the Issuer
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 (the "Indenture"),
between the Issuer and The Chase Manhattan 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.
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NOW IT IS HEREBY AGREED THAT:
1. The Issuer hereby appoints The Chase Manhattan Bank as Calculation
Agent for the Floating Rate Notes, upon the terms and subject to the conditions
herein mentioned, and The Chase Manhattan 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, shall deliver to the Calculation Agent the information required to be
provided by the Issuer for the calculation of the
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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.
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
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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
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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;
(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
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(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 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
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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 and the date when it shall
become effective (such effective date being at least 20 days after said filing).
Any such resignation or removal shall take effect upon:
(i) the appointment by the Issuer as hereinafter provided of a
successor Calculation Agent; and
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(ii) the acceptance of such appointment by such
successor Calculation Agent;
provided, however, 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 appoint-
ment 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 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
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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 hereunder, and thereupon such successor
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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 paragraph 6 hereof shall survive any resignation
or removal hereunder.
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9. Any notice required to be given hereunder shall be delivered in
person against written receipt, sent by letter or telex or telecopy or
communicated by telephone (subject, in the case of communication by telephone,
to confirmation dispatched within two business days by letter, telex or
telecopy), in the case of the Issuer, to it at the address set forth in the
heading of this Agreement, Attention: Assistant Treasurer, Telephone: (212)
▇▇▇-▇▇▇▇, Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to the Treasurer and the Senior
Vice President and General Counsel; in the case of the Calculation Agent, to it
at the address set forth in the heading of this Agreement, Attention: Global
Trust Services, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇; in the
case of the Trustee, to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Global Trust Services, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇,
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇; 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.
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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.
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Assistant Secretary
THE CHASE MANHATTAN BANK
By /s/ ▇. ▇▇▇▇▇▇▇▇
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Title: Senior Trust Officer