Exhibit 10.2
EXCHANGE RATE
AGENCY AGREEMENT
BETWEEN
THE NEW YORK TIMES COMPANY
AND
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Dated as of September 24, 1998
The New York Times Company (the "Company") proposes to issue and sell
from time to time its Medium-Term Notes (the "Notes") in an initial aggregate
principal amount of up to $300,000,000 or its equivalent in one or more foreign
currency or composite currency, pursuant to an Indenture dated as of March 29,
1995 as supplemented by the First Supplemental Indenture dated as of August 21,
1998 (the Indenture so supplemented, the "Indenture"), by and between the
Company and The Chase Manhattan Bank (formerly known as Chemical Bank), as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture). Unless otherwise indicated in the applicable Pricing
Supplement, payments of principal of (and premium, if any) and interest on Notes
denominated in one or more foreign currency or composite currency (the "Foreign
Currency Notes") will be made in the foreign currency or composite currency
specified in the applicable Pricing Supplement (the "Specified Currency");
provided, however, that payment of principal (and premium, if any) and interest
on the Foreign Currency Notes will be made in U.S. dollars (i) at the option of
the Company in the case of imposition of exchange controls or other
circumstances beyond the control of the Company on the basis of the most
recently available noon buying rate in The City of New York for cable transfers
for such Specified Currency or (ii) in the case of Notes which so provide, at
the option of the holder of such Foreign Currency Note in accordance with the
procedures set forth in such Foreign Currency Note. For the purpose of
appointing an Exchange Rate Agent to convert Specified Currencies to U.S.
dollars for the payment of principal of (and premium, if any) and interest on
the Foreign Currency Notes to holders of Foreign Currency Notes who are to be
paid in U.S. dollars and for the purpose of performing the other services
hereinafter described upon the terms and subject to the conditions hereinafter
mentioned, the Company hereby agrees as follows.
Capitalized terms used herein that are not otherwise defined shall have
the same meanings ascribed thereto in the Prospectus Supplement dated September
24, 1998, pertaining to the Notes (the "Prospectus Supplement") or in the
Foreign Currency Notes.
SECTION 1. Appointment of Exchange Rate Agent. The Company hereby
appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ as Exchange Rate Agent (the "Exchange Rate
Agent") with respect to the Foreign Currency Notes sold by or on behalf of the
Company pursuant to the Distribution Agreement dated September 24, 1998, and the
Exchange Rate Agent accepts its obligations as set forth in this Agreement upon
the terms and conditions set forth herein.
SECTION 2. Exchange of Currencies. The Company shall cause the Trustee
to notify the Exchange Rate Agent at least two Business Days prior to each day
on which principal of (and premium, if any) or interest on the Notes shall be
payable (each a "Payment Date") of the aggregate amount of Specified Currency
payable to all holders of Foreign Currency Notes scheduled to receive payments
in U.S. dollars on such Payment Date. As of 11:00 a.m., New York City time, on
the second Business Day next preceding the applicable Payment Date, the Exchange
Rate Agent will solicit bid quotations from three Recognized Foreign Exchange
Dealers (as defined in Section 3 hereof) for the purchase by the quoting
Recognized Foreign Exchange Dealer of the aggregate amount of the Specified
Currency which is to be exchanged for payment in U.S. dollars on such Payment
Date. The settlement date for the exchange of such Specified Currency for U.S.
dollars shall be the applicable Payment Date. The Exchange Rate Agent shall
enter into an agreement to trade such currencies (in such amounts and upon such
terms as indicated above and upon such further terms as are not inconsistent
with the above) with such Recognized Foreign Exchange Dealers as shall have
submitted the highest bid. The Exchange Rate Agent shall notify the Company and
the Paying Agent, by telex, telefax or telephone and confirmed promptly in
writing or in any other manner satisfactory to the Company or the Paying Agent,
(i) of the highest exchange rate quoted in the bids received from the Recognized
Foreign Exchange Dealers or (ii) if such bids are not available from the
Recognized Foreign Exchange Dealers. If such bids are not available, the
Exchange Rate Agent will transmit the total amount of the Specified Currency
received from the Company for payment on the Payment Date to the Company's
paying agent as provided below.
Prior to each Payment Date, the Exchange Rate Agent will give
telephonic notice to the Company of the place (including the account number and
related information) to which the conversion amount shall be paid on the Payment
Date to the Exchange Rate Agent by the Company. Such telephonic notice shall be
confirmed in writing as soon as practicable thereafter in accordance with
Section 11. In the event the Exchange Rate Agent fails to give such notice, the
Company shall be entitled to rely on the payment instructions with respect to
the immediately preceding Payment Date.
As early as practicable on the Payment Date, the Company shall remit to
the Exchange Rate Agent the aggregate amount of Specified Currency payable to
all holders of Foreign Currency Notes scheduled to receive payments in U.S.
dollars on such Payment Date. As promptly as practicable thereafter on the
Payment Date, the Exchange Rate Agent will exchange such amount of Specified
Currency for U.S. dollars and transmit the U.S. dollars received upon exchange
from the Specified Currency to the Company's paying agent, or in accordance with
the instructions of such paying agent.
-2-
SECTION 3. Certain Definitions. As used herein, "Business Day" means
any day which is not a Saturday or a Sunday and which is neither a legal holiday
nor a day on which banking institutions are authorized or required by law or
regulation to close in The City of New York.
As used herein, "Recognized Foreign Exchange Dealers" means (a) any of
the first three foreign exchange dealers in a list to be selected by the
Exchange Rate Agent, or (b) upon the failure to obtain one or more of such bids
from the first three firms in the list, such other firms listed in the
descending order of their appearance on such list, as shall be necessary to
obtain the three bids as required by Section 2 hereof, or (c) in the absences of
bids under subsection (a) or (b) above, such other firms located in The City of
New York as the Exchange Rate Agent shall advise the Company from time to time
in writing. Nothing contained herein shall be considered to prohibit the
Exchange Rate Agent from serving as a Recognized Foreign Exchange Dealer.
SECTION 4. Fees and Expenses. The Exchange Rate Agent shall be entitled
to such compensation for its services under this Agreement as may be agreed upon
with the Company, and the Company shall pay such compensation from time to time.
Upon receiving an accounting therefor from the Exchange Rate Agent, the Company
will also pay the reasonable out-of-pocket expenses (including legal, bid
solicitation, telex and cable expenses) incurred by the Exchange Rate Agent in
connection with its services to the Company as Exchange Rate Agent hereunder,
except any expenses or disbursements attributable to its negligence or bad
faith. It is understood that all currency exchange costs will be borne by
Foreign Currency Note holders whose Note payments are required to be converted
into U.S. dollars and will be deducted by the Exchange Rate Agent from funds
transmitted to or in accordance with the instructions of the Company's paying
agent pursuant to Section 2 hereof. Upon request by the Exchange Rate Agent, the
Company will confirm to the Exchange Rate Agent whether specified expenses,
disbursements or advances are or are not to be borne by such Foreign Currency
Note holders pursuant to the terms of the Foreign Currency Notes.
SECTION 5. Status of Exchange Rate Agent. Any acts of the Exchange Rate
Agent under this Agreement or in connection with the Foreign Currency Notes
shall be solely as agent of the Company and shall not create or imply any
obligation to, or any relationship with, the owners or holders of the Foreign
Currency Notes.
SECTION 6. Rights and Liabilities of Exchange Rate Agent. The Exchange
Rate Agent 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 any Foreign
Currency Note, written instruction, notice, request, direction, certificate,
affidavit, statement or other paper, document or communication reasonably
believed by it to be genuine. Any order, certificate, affidavit, instruction,
notice, request, direction, statement or other communication from the Company
made or given by it and sent, delivered or directed to the Exchange Rate Agent
under, pursuant to or as permitted by any provision of this Agreement shall be
sufficient for purposes of this Agreement if such
-3-
communication is in writing and signed by any officer or other duly authorized
employee of the Company. All determinations made by the Exchange Rate Agent with
respect to any Foreign Currency Note shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Company.
SECTION 7. Duties of Exchange Rate Agent. The Exchange Rate Agent shall
be obligated to perform such duties and only such duties as are specifically set
forth herein and in the Prospectus Supplement, the related Pricing Supplement
and the Administrative Procedure relating to the Distribution Agreement dated
September 24, 1998, among the Company and the Agents (as defined therein), and
no other duties or obligations shall be implied by this Agreement.
SECTION 8. Termination, Resignation or Removal of Exchange Rate Agent.
(a) The Exchange Rate Agent may at any time terminate this Agreement by
giving no less than two months (60 days) prior written notice to the Company
unless the Company agrees in writing to a shorter time. The Company may
terminate this Agreement at any time by giving written notice to the Exchange
Rate Agent and specifying the date when the termination shall become effective.
Upon termination by either party under this Section, (i) the Exchange Rate Agent
shall repay to the Company the unearned portion, calculated on a pro rata basis,
of its fee payable under this Agreement and (ii) the Exchange Rate Agent shall
be entitled to the payment of any amount owed to it by the Company and to the
reimbursement of all reasonable expenses incurred in connection with the
services rendered by it hereunder, which obligations shall survive the Exchange
Rate Agent's resignation or removal hereunder and the termination of this
Agreement, and the provisions of Section 9 shall remain in effect.
(b) Any successor Exchange Rate Agent appointed shall execute and
deliver to the Exchange Rate Agent it is replacing and to the Company an
instrument accepting such appointment, and thereupon such successor Exchange
Rate Agent shall without any further act, deed or conveyance, become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations of
the Exchange Rate Agent it is replacing, and with like effect as if originally
named as Exchange Rate Agent by consent hereunder, and the Exchange Rate Agent
shall thereupon be obligated to transfer and deliver, and such subsequent
Exchange Rate Agent shall be entitled to receive, copies of any relevant records
maintained by the Exchange Rate Agent it is replacing.
SECTION 9. Indemnification. The Company agrees to indemnify and hold
harmless the Exchange Rate Agent, its officers, employees and agents from and
against all actions, claims, damages, liabilities, losses and expenses
(including legal fees and expenses) to the extent that such actions, claims,
damages, liabilities, losses and expenses arise directly from its appointment or
the exercise of its powers and duties hereunder, except actions, claims,
damages, liabilities, losses and expenses caused by the negligence or willful
misconduct of the Exchange Rate Agent, its officers or employees.
-4-
SECTION 10. Merger, Consolidation or Sale of Business by the Exchange
Rate Agent. Any corporation into which the Exchange Rate Agent may be merged or
consolidated, or any corporation resulting from any merger or consolidation to
which the Exchange Rate Agent may be a party, or any corporation to which the
Exchange Rate Agent may sell or otherwise transfer all or substantially all of
its assets and business, shall, to the extent permitted by applicable law,
become the Exchange Rate Agent under this Agreement without the execution or
filing of any paper or any further act by the parties hereto. Notice in writing
of any such merger, consolidation or sale shall be given forthwith to the
Company.
SECTION 11. Notices. Any notice given hereunder shall be delivered in
person, sent by a letter sent through a service that maintains a record of
delivery and receipt or facsimile transmission or communicated by telephone
(subject, in the case of communication by telephone, to confirmation dispatched
immediately by letter sent through a service that maintains a record of delivery
and receipt or facsimile transmission) to the addresses given below or such
other address as the party to receive such notice may have previously specified:
To the Company:
The New York Times Company
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Mr. R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Assistant Treasurer
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
The New York Times Company
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇,
Treasurer
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
and
The New York Times Company
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
-5-
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, Esq.,
Senior Vice President and General Counsel
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Paying Agent or the Trustee:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Global Trust Services
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Exchange Rate Agent:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Credit Department
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Managing Director, Debt Syndicate
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice hereunder given by facsimile transmission or letter shall be
effective when it is received.
SECTION 12. Benefit of Agreement. Except as provided herein, this
Agreement is solely for the benefit of the parties hereto and their successors
and assigns an no other person shall acquire or have any rights under or by
virtue hereof.
-6-
SECTION 13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements entered into and to be performed in such State.
SECTION 14. Counterparts. This Agreement may be executed in any number
of counterparts, each of which, when so executed, shall be deemed to be an
original and all of which, taken together, shall constitute one and the same
Agreement.
-7-
IN WITNESS WHEREOF, this Agreement has been entered into the day and
year first above written.
THE NEW YORK TIMES COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Secretary
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
-8-
