Exhibit 10.1


 




 





CUSIP Number: 650112AA3


 


CREDIT AGREEMENT*


 


Dated as of May 28, 2004


 


among


 


THE NEW YORK TIMES COMPANY,


as the Borrower,


 


BANK OF AMERICA, N.A.,


as Administrative Agent, Swing Line Lender


and


L/C Issuer,


 


and


 


The Other Lenders Party Hereto


 


BANC OF AMERICA SECURITIES LLC,


as


Joint Lead Arranger and Joint Book Manager,


 


J.P. MORGAN SECURITIES INC.


as Joint Lead Arranger and Joint Book
Manager,


 


JPMORGAN CHASE BANK,


as Documentation Agent


 


and


 


THE BANK OF NEW YORK and
SUNTRUST BANK,


 


as Co-Syndication Agents




 





 






*Restated to reflect Amendment No. 1 dated as
of July 29, 2004 and Amendment No. 2 dated as of September 7, 2006.


 

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I.

  	
  DEFINITIONS
  AND ACCOUNTING TERMS

  	
  1

  
	
   

  	
   

  	
   

  
	
   

  	
  1.01

  	
  Defined Terms

  	
  1

  
	
   

  	
  1.02

  	
  Other Interpretive Provisions

  	
  15

  
	
   

  	
  1.03

  	
  Accounting Terms

  	
  16

  
	
   

  	
  1.04

  	
  Rounding

  	
  16

  
	
   

  	
  1.05

  	
  References to Agreements and Laws

  	
  16

  
	
   

  	
  1.06

  	
  Times of Day

  	
  16

  
	
   

  	
  1.07

  	
  Letter of Credit Amounts

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
  THE
  COMMITMENTS AND CREDIT EXTENSIONS

  	
  17

  
	
   

  	
   

  	
   

  
	
   

  	
  2.01

  	
  Committed Loans

  	
  17

  
	
   

  	
  2.02

  	
  Borrowings, Conversions and Continuations of
  Committed Loans

  	
  17

  
	
   

  	
  2.03

  	
  Letters of Credit.

  	
  19

  
	
   

  	
  2.04

  	
  Swing Line Loans

  	
  27

  
	
   

  	
  2.05

  	
  Prepayments

  	
  29

  
	
   

  	
  2.06

  	
  Termination or Reduction of Commitments

  	
  30

  
	
   

  	
  2.07

  	
  Repayment of Loans

  	
  30

  
	
   

  	
  2.08

  	
  Interest

  	
  31

  
	
   

  	
  2.09

  	
  Fees

  	
  31

  
	
   

  	
  2.10

  	
  Computation of Interest and Fees

  	
  32

  
	
   

  	
  2.11

  	
  Evidence of Debt

  	
  32

  
	
   

  	
  2.12

  	
  Payments Generally

  	
  33

  
	
   

  	
  2.13

  	
  Sharing of Payments

  	
  34

  
	
   

  	
  2.14

  	
  Extension of Maturity Date

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
  TAXES,
  YIELD PROTECTION AND ILLEGALITY

  	
  36

  
	
   

  	
   

  	
   

  
	
   

  	
  3.01

  	
  Taxes

  	
  36

  
	
   

  	
  3.02

  	
  Illegality

  	
  37

  
	
   

  	
  3.03

  	
  Inability to Determine Rates

  	
  37

  
	
   

  	
  3.04

  	
  Increased Cost and Reduced Return; Capital Adequacy;
  Reserves on Eurodollar Rate Loans

  	
  38

  
	
   

  	
  3.05

  	
  Compensation for Losses

  	
  39

  
	
   

  	
  3.06

  	
  Matters Applicable to all Requests for Compensation

  	
  39

  
	
   

  	
  3.07

  	
  Survival

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  	
  CONDITIONS
  PRECEDENT TO CREDIT EXTENSIONS

  	
  39

  
	
   

  	
   

  
	
   

  	
  4.01

  	
  Conditions of Initial Credit Extension

  	
  39

  
	
   

  	
  4.02

  	
  Conditions to all Credit Extensions

  	
  41

  
	
   

  	
   

  
	
  ARTICLE V.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  41

  
	
   

  	
   

  	
   

  
	
   

  	
  5.01

  	
  Existence; Qualification and Power

  	
  41

  
						



 


i

















 


	
   

  	
  5.02

  	
  Authorization; No Contravention

  	
  41

  
	
   

  	
  5.03

  	
  Governmental Authorization; Other Consents

  	
  41

  
	
   

  	
  5.04

  	
  Binding Effect

  	
  42

  
	
   

  	
  5.05

  	
  Financial Statements; No Material Adverse Effect

  	
  42

  
	
   

  	
  5.06

  	
  Litigation

  	
  42

  
	
   

  	
  5.07

  	
  Use of Proceeds

  	
  42

  
	
   

  	
  5.08

  	
  Ownership of Property; Liens

  	
  42

  
	
   

  	
  5.09

  	
  Taxes

  	
  42

  
	
   

  	
  5.10

  	
  Subsidiaries

  	
  43

  
	
   

  	
  5.11

  	
  ERISA Compliance

  	
  43

  
	
   

  	
  5.12

  	
  Investment Company Act

  	
  43

  
	
   

  	
   

  
	
  ARTICLE VI.

  	
  AFFIRMATIVE
  COVENANTS

  	
  43

  
	
   

  	
   

  
	
   

  	
  6.01

  	
  Financial Statements

  	
  44

  
	
   

  	
  6.02

  	
  Taxes and Claims

  	
  45

  
	
   

  	
  6.03

  	
  Insurance

  	
  45

  
	
   

  	
  6.04

  	
  Maintenance of Existence; Conduct of Business

  	
  45

  
	
   

  	
  6.05

  	
  Maintenance of Properties

  	
  46

  
	
   

  	
  6.06

  	
  Access to Books and Inspection

  	
  46

  
	
   

  	
  6.07

  	
  Compliance with Applicable Laws

  	
  47

  
	
   

  	
  6.08

  	
  Litigation

  	
  47

  
	
   

  	
  6.09

  	
  ERISA

  	
  47

  
	
   

  	
  6.10

  	
  Notice

  	
  47

  
	
   

  	
  6.11

  	
  Change in Business

  	
  47

  
	
   

  	
  6.12

  	
  Change of Control

  	
  47

  
	
   

  	
  6.13

  	
  Dividends, Etc.

  	
  48

  
	
   

  	
   

  
	
  ARTICLE VII.

  	
  NEGATIVE
  COVENANTS

  	
  48

  
	
   

  	
   

  
	
   

  	
  7.01

  	
  Limitation on Liens and Guarantees

  	
  48

  
	
   

  	
  7.02

  	
  Disposition of Assets, Consolidation or Merger

  	
  49

  
	
   

  	
  7.03

  	
  Minimum Stockholders’ Equity

  	
  49

  
	
   

  	
   

  
	
  ARTICLE VIII.

  	
  EVENTS
  OF DEFAULT AND REMEDIES

  	
  49

  
	
   

  	
   

  
	
   

  	
  8.01

  	
  Events of Default

  	
  49

  
	
   

  	
  8.02

  	
  Remedies Upon Event of Default

  	
  51

  
	
   

  	
  8.03

  	
  Application of Funds

  	
  52

  
	
   

  	
   

  
	
  ARTICLE IX.

  	
  ADMINISTRATIVE
  AGENT

  	
  53

  
	
   

  	
   

  
	
   

  	
  9.01

  	
  Appointment and Authorization of Administrative
  Agent

  	
  53

  
	
   

  	
  9.02

  	
  Delegation of Duties

  	
  53

  
	
   

  	
  9.03

  	
  Liability of Administrative Agent

  	
  53

  
	
   

  	
  9.04

  	
  Reliance by Administrative Agent

  	
  54

  
	
   

  	
  9.05

  	
  Notice of Default

  	
  54

  
	
   

  	
  9.06

  	
  Credit Decision; Disclosure of Information by
  Administrative Agent

  	
  55

  
					



 


ii

















 


	
   

  	
  9.07

  	
  Indemnification of Administrative Agent

  	
  55

  
	
   

  	
  9.08

  	
  Administrative Agent in its Individual Capacity

  	
  56

  
	
   

  	
  9.09

  	
  Successor Administrative Agent

  	
  56

  
	
   

  	
  9.10

  	
  Administrative Agent May File Proofs of Claim

  	
  57

  
	
   

  	
  9.11

  	
  Other Agents; Arrangers and Managers

  	
  57

  
	
   

  	
   

  
	
  ARTICLE X.

  	
  MISCELLANEOUS

  	
  58

  
	
   

  	
   

  
	
   

  	
  10.01

  	
  Amendments, Etc.

  	
  58

  
	
   

  	
  10.02

  	
  Notices and Other Communications; Facsimile Copies

  	
  59

  
	
   

  	
  10.03

  	
  No Waiver; Cumulative Remedies

  	
  60

  
	
   

  	
  10.04

  	
  Attorney Costs, Expenses and Taxes

  	
  60

  
	
   

  	
  10.05

  	
  Indemnification by the Borrower

  	
  61

  
	
   

  	
  10.06

  	
  Payments Set Aside

  	
  61

  
	
   

  	
  10.07

  	
  Successors and Assigns

  	
  62

  
	
   

  	
  10.08

  	
  Confidentiality

  	
  65

  
	
   

  	
  10.09

  	
  Set-off

  	
  66

  
	
   

  	
  10.10

  	
  Interest Rate Limitation

  	
  66

  
	
   

  	
  10.11

  	
  Counterparts

  	
  67

  
	
   

  	
  10.12

  	
  Integration

  	
  67

  
	
   

  	
  10.13

  	
  Survival of Representations and Warranties

  	
  67

  
	
   

  	
  10.14

  	
  Severability

  	
  67

  
	
   

  	
  10.15

  	
  Tax Forms

  	
  67

  
	
   

  	
  10.16

  	
  Governing Law

  	
  69

  
	
   

  	
  10.17

  	
  Waiver of Right to Trial by Jury

  	
  70

  
	
   

  	
  10.18

  	
  USA PATRIOT Act Notice

  	
  70

  
	
   

  	
   

  
	
  SIGNATURES

  	
   

  	
  S-1

  
	
   

  	
   

  
	
  SCHEDULES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.01

  	
  Commitments and Pro Rata Shares

  	
   

  
	
   

  	
  5.09

  	
  Actions, Proceedings and Claims with
  Respect to Taxes

  	
   

  
	
   

  	
  5.10

  	
  Subsidiaries

  	
   

  
	
   

  	
  10.02

  	
  Administrative Agent’s Office, Certain
  Addresses for Notices

  	
   

  
						



 


iii

















 


EXHIBITS


 


	
   

  	
   

  	
  Form of

  
	
   

  	
   

  	
   

  
	
   

  	
  A

  	
  Committed Loan Notice

  
	
   

  	
  B

  	
  Swing Line Loan Notice

  
	
   

  	
  C-1

  	
  Note

  
	
   

  	
  C-2

  	
  Swing Line Note

  
	
   

  	
  D

  	
  Compliance Certificate

  
	
   

  	
  E

  	
  Assignment and Assumption

  
	
   

  	
  F

  	
  Opinion Matters

  
	
   

  	
  G

  	
  Extension Request

  



 


iv

















 


CREDIT AGREEMENT*


 


This CREDIT
AGREEMENT (“Agreement”) is entered into as of May 28, 2004, among THE NEW YORK TIMES COMPANY, a New York
corporation (the “Borrower”), each lender from time to time party hereto
(collectively, the “Lenders” and individually, a “Lender”), and
BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer, BANC OF AMERICA SECURITIES LLC, as Joint Lead Arranger and Joint Book
Manager, J.P. MORGAN SECURITIES INC., as Joint Lead Arranger and Joint Book
Manager, JPMORGAN CHASE BANK, as Documentation Agent, and THE BANK OF NEW YORK
and SUNTRUST BANK, as Co-Syndication Agents.


 


The Borrower
has requested that the Lenders provide a revolving credit facility, a letter of
credit subfacility and a swing line subfacility and the Lenders are willing to
do so on the terms and conditions set forth herein.


 


In
consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:


 


ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS


 


1.01        Defined Terms. As used
in this Agreement, the following terms shall have the meanings set forth below:


 


“Administrative
Agent” means Bank of America in its capacity as administrative agent under
any of the Loan Documents, or any successor administrative agent.


 


“Administrative
Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by
the Administrative Agent.


 


“Affiliate”
means, with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified. “Control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. “Controlling”
and “Controlled” have meanings correlative thereto. Without limiting the generality of the
foregoing, a Person shall be deemed to be Controlled by another Person if such
other Person possesses, directly or indirectly, power to vote 10% or more of
the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.


 


“Agent-Related
Persons” means the Administrative Agent, together with its Affiliates
(including, in the case of Bank of America in its capacity as the
Administrative Agent, Banc of America Securities LLC), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.


 






*      Restated to reflect Amendment No.1 dated as
of July 29, 2004 and Amendment No. 2 dated as of September 7, 2006.


 


1

















 


“Aggregate
Commitments” means the Commitments of all the Lenders.


 


“Agreement”
means this Credit Agreement.


 


“Applicable
Rate” means, from time to time, the following percentages per annum, based
upon the Debt Rating as set forth below:


 


	
  Pricing

  Level

  	
   

  	
  Eurodollar

  Rate Margin

  	
   

  	
  Base Rate

  Margin

  	
   

  	
  Base Facility

  Fee

  	
   

  	
  Utilization Fee

  	
   

  
	
  1

  	
   

  	
  0.140

  	
  %

  	
  0.300

  	
  %

  	
  0.06

  	
  %

  	
  0.05%

  (if > 50% drawn)

  	
   

  
	
  2

  	
   

  	
  0.180

  	
  %

  	
  0.340

  	
  %

  	
  0.07

  	
  %

  	
  0.05%

  (if > 50% drawn)

  	
   

  
	
  3

  	
   

  	
  0.250

  	
  %

  	
  0.450

  	
  %

  	
  0.10

  	
  %

  	
  0.10%

  (if > 50% drawn)

  	
   

  
	
  4

  	
   

  	
  0.400

  	
  %

  	
  0.600

  	
  %

  	
  0.15

  	
  %

  	
  0.15%

  (if > 50% drawn)

  	
   

  



 


As used
herein, (a) “Pricing Level 1” applies to any date if, at such date, the
Borrower’s Debt Rating is AA- or higher by S&P or Aa3 or higher by Moody’s
and neither such Debt Rating is less than A- by S&P or A3 by Moody’s; (b) “Pricing
Level 2” applies to any date if, at such date, (i) the Borrower’s Debt
Rating is A- or higher by S&P or A3 or higher by Moody’s and neither such
Debt Rating is less than BBB by S&P or Baa2 by Moody’s and (ii) Pricing
Level 1 does not apply; (3) “Pricing Level 3” applies to any date if, at
such date, (i) the Borrower’s Debt Rating is BBB- or higher by S&P or Baa3
or higher by Moody’s and neither such Debt Rating is less than BBB- by S&P
or Baa3 by Moody’s and (ii) neither Pricing Level 1 nor Pricing Level 2
applies; and (d) “Pricing Level 4” applies to any date if, at such date,
no other Pricing Level applies.


 


“Debt
Rating” means, as of any date of determination, the rating then in effect
as determined by either S&P or Moody’s (collectively, the “Debt Ratings”)
of the Borrower’s non-credit-enhanced, senior unsecured medium-term debt; provided
that if a Debt Rating is issued by each of the foregoing rating agencies, then
the lower of such Debt Ratings
shall apply (with the Debt Rating for Pricing Level 1 being the highest and the
Debt Rating for Pricing Level 4 being the lowest), unless there is a split in
Debt Ratings of more than one level, in which case the Pricing Level that is
one level higher than the Pricing Level
of the lower Debt Rating shall apply.


 


Initially, the
Applicable Rate shall be determined based upon the Debt Rating specified in the
certificate delivered pursuant to Section 4.01(a)(vii). Thereafter, each
change in the Applicable Rate resulting from a publicly announced change in the
Debt Rating shall be effective during the period commencing on the date of the
public announcement thereof and ending on the date immediately preceding the
effective date of the next such change.


 


“Assignment
and Assumption” means an Assignment and Assumption substantially in the
form of Exhibit E.


 


2

















 


“Attorney
Costs” means and includes all reasonable fees, expenses and disbursements
of any law firm or other external counsel and, without duplication, the
reasonably allocated cost of internal legal services and all reasonable
expenses and disbursements of internal counsel.


 


“Availability
Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate
Commitments pursuant to Section 2.06, and (c) the date of termination of
the commitment of each Lender to make Loans and of the obligation of each L/C
Issuer to make L/C Credit Extensions pursuant to Section 8.02.


 


“Bank of
America” means Bank of America, N.A. and its successors.


 


“Base
Financials” means the Consolidated Statements as at, and for the fiscal
year ended, December 28, 2003, including the notes thereto, with the opinion
thereon of Deloitte & Touche LLP, heretofore furnished to the Lenders.


 


“Base Rate”
means for any day a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate plus the Base Rate Margin specified under the
Applicable Rate and (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate”. The “prime
rate” is a rate set by Bank of America based upon various factors including
Bank of America’s costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate. Any change in such rate
announced by Bank of America shall take effect at the opening of business on
the day specified in the public announcement of such change.


 


“Base Rate
Committed Loan” means a Committed Loan that is a Base Rate Loan.


 


“Base Rate
Loan” means a Loan that bears interest based on the Base Rate.


 


“Borrower”
has the meaning specified in the introductory paragraph hereto.


 


“Borrowing”
means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.


 


“Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent’s Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which dealings
in Dollar deposits are conducted by and between banks in the London interbank
eurodollar market.


 


“Capitalized
Lease Obligation” means any lease obligation which, in accordance with GAAP
(including, without limitation, Statement of Financial Accounting Standards No.
13), has been or should be capitalized on the books of the lessee and, for
purposes hereof, the amount of such obligation shall be the capitalized amount
thereof determined in accordance with such principles.


 


“Cash
Collateralize” has the meaning specified in Section 2.03(g).


 


3

















 


“Closing
Date” means the first date all the conditions precedent in Section 4.01
are satisfied or waived in accordance with Section 10.01.


 


“Code”
means the Internal Revenue Code of 1986.


 


“College
Point Project” means the printing facility at College Point, Queens.


 


“Commitment”
means, as to each Lender, its obligation to (a) make Committed Loans to the
Borrower pursuant to Section 2.01, (b) purchase participations in L/C
Obligations, and (c) purchase participations in Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender’s name on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement.


 


“Committed
Borrowing” means a borrowing consisting of simultaneous Committed Loans of
the same Type and, in the case of Eurodollar Rate Loans, having the same
Interest Period, made by each of the Lenders pursuant to Section 2.01 .


 


“Committed
Loan” has the meaning specified in Section 2.01.


 


“Committed
Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion
of Committed Loans from one Type to the other, or (c) a continuation of
Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.


 


“Compliance
Certificate” means a certificate substantially in the form of Exhibit D.


 


“Consolidated
Statements” means the audited consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries and the related consolidated statements of
income or operations, shareholders’ equity and cash flows for such fiscal year
of the Borrower and its Consolidated Subsidiaries, including the notes thereto.


 


“Consolidated Subsidiary” means any Subsidiary which in
accordance with GAAP shall be consolidated with the Borrower in any
consolidated financial statements furnished to the Lenders.


 


“Contractual
Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its property is bound.


 


“Control”
has the meaning specified in the definition of “Affiliate.”


 


“Corporation”
means the Borrower or any of its Consolidated Subsidiaries.


 


“Credit
Extension” means each of the following: (a) a Borrowing and (b) an L/C
Credit Extension.


 


4

















 


“Debt Rating” has the meaning specified in the definition of “Applicable
Rate.”


 


“Debtor
Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.


 


“Default”
means any event or condition that constitutes an Event of Default or that, with
the giving of any notice, the passage of time, or both, would be an Event of
Default.


 


“Default
Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 1% per
annum; provided, however, that with respect to a Eurodollar Rate Loan, the Default
Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 1% per annum,
and (b) when used with respect to Letter of Credit Fees, a rate equal to the
Applicable Rate plus 1% per annum, in all cases to the fullest extent
permitted by applicable Laws.


 


“Defaulting
Lender” means any Lender that (a) has failed to fund any portion of the
Committed Loans, participations in L/C Obligations or participations in Swing
Line Loans required to be funded by it hereunder within one Business Day of the
date required to be funded by it hereunder, (b) has otherwise failed to pay
over to the Administrative Agent or any other Lender any other amount required
to be paid by it hereunder within one Business Day of the date when due, unless
the subject of a good faith dispute, or (c) has been deemed insolvent or become
the subject of a bankruptcy or insolvency proceeding.


 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.


 


“Dollar”
and “$” mean lawful money of the United States.


 


“Domestic
Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.


 


“Eligible
Assignee” has the meaning specified in Section 10.07(g).


 


“Environmental
Laws” means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.


 


“Environmental Liability” means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the


 


5

















 


Borrower or any of their respective
Subsidiaries resulting from or based upon, in whole or in part, (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, including (unless the context otherwise requires) any rules or
regulations promulgated thereunder.


 


“ERISA
Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of
the Code (and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).


 


“Eurodollar
Rate” means for any Interest Period with respect to a Eurodollar Rate Loan:


 


(a)           the rate per annum
equal to the rate determined by the Administrative Agent to be the offered rate
that appears on the page of the Telerate screen (or any successor thereto) that
displays an average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or


 


(b)           if the rate referenced
in the preceding clause (a) does not appear on such page or service or
such page or service shall not be available, the rate per annum equal to the
rate determined by the Administrative Agent to be the offered rate on such
other page or other service that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for delivery on
the first day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or


 


(c)           if the rates referenced
in the preceding clauses (a) and (b) are not available, the rate
per annum determined by the Administrative Agent as the rate of interest at
which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America’s London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 4:00 p.m. (London time) two Business Days prior to the first day
of such Interest Period.


 


“Eurodollar
Rate Loan” means a Committed Loan that bears interest at a rate based on
the Eurodollar Rate.


 


“Event of
Default” has the meaning specified in Section 8.01.


 


6

















 


“Existing Credit Agreement” means that certain 364-Day Credit
Agreement dated as of July 8, 1996, as extended and as amended, restated,
supplemented or otherwise modified from time to time, among the Borrower, Bank
of America, N.A., as agent, and a syndicate of lenders.


 


“Federal
Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a Business
Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by
the Administrative Agent.


 


“Fee Letter”
means the letter agreement, dated May 3, 2004, as amended, among the Borrower,
the Administrative Agent and Banc of America Securities LLC.


 


“Foreign
Lender” has the meaning specified in Section 10.15(a)(i).


 


“FRB”
means the Board of Governors of the Federal Reserve System of the United
States.


 


“GAAP”
means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.


 


“Governmental
Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body,
court, administrative tribunal, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers
or functions of or pertaining to government.


 


“Granting Lender” has the meaning specified in Section
10.07(h).


 


“Guarantee”
has the meaning specified in Section 7.01.


 


“Hazardous Materials” means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious
or medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.


 


“Indebtedness”
means (a) indebtedness for borrowed money, (b) obligations evidenced by bonds,
debentures, notes or other similar instruments, (c) obligations to pay the
deferred


 


7

















 


purchase price of property or services other than ordinary course trade
debt, and (d) the unpaid capitalized amount of such Capitalized Lease
Obligations.


 


“Indemnified
Liabilities” has the meaning specified in Section 10.05.


 


“Indemnitees”
has the meaning specified in Section 10.05.


 


“Interest
Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date;
provided, however,
that if any Interest Period for a Eurodollar Rate Loan exceeds three months,
the respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any Base
Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December
and the Maturity Date.


 


“Interest
Period” means, as to each Eurodollar Rate Loan, the period commencing on
the date such Eurodollar Rate Loan is disbursed or converted to or continued as
a Eurodollar Rate Loan and ending on the date one, two, three, six, nine or, if
available (as determined by all of the Lenders), twelve months thereafter, as
selected by the Borrower in its Committed Loan Notice; provided that:


 


(i)            any Interest Period
that would otherwise end on a day that is not a Business Day shall be extended
to the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day;


 


(ii)           any Interest Period
that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the calendar month
at the end of such Interest Period; and


 


(iii)          no Interest Period shall
extend beyond the Maturity Date.


 


“IRS”
means the United States Internal Revenue Service.


 


“ISP”
means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of
issuance).


 


“Issuer
Documents” means with respect to any Letter of Credit Application, and any
other document, agreement and instrument entered into by the L/C Issuer and the
Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to any
such Letter of Credit.


 


“Laws”
means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses, authorizations
and


 


8

















 


permits of, and agreements with, any Governmental Authority, in each
case whether or not having the force of law.


 


“L/C
Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Pro Rata Share.


 


“L/C
Borrowing” means an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Committed Borrowing.


 


“L/C Credit
Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount
thereof.


 


“L/C Issuer”
means the following: (a) Bank of America in its capacity as an issuer of
Letters of Credit hereunder; (b) any other Lender who consents to become an
additional L/C Issuer hereunder; and (c) any successor issuer of Letters of
Credit hereunder, and shall mean any and all of the foregoing as may be
appropriate in the context.


 


“L/C
Obligations” means, as at any date of determination, the aggregate undrawn
amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by
its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding”
in the amount so remaining available to be drawn.


 


“Lender”
has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the L/C Issuer and the Swing Line Lender.


 


“Lending
Office” means, as to any Lender, the office or offices of such Lender described
as such in such Lender’s Administrative Questionnaire, or such other office or
offices as a Lender may from time to time notify the Borrower and the
Administrative Agent.


 


“Letter of
Credit” means any letter of credit issued hereunder. A Letter of Credit may be a commercial letter
of credit or a standby letter of credit.


 


“Letter of
Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C
Issuer.


 


“Letter of
Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next
preceding Business Day).


 


“Letter of
Credit Fee” has the meaning specified in Section 2.03(i).


 


“Letter of
Credit Sublimit” means an amount equal to $75,000,000. The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Commitments.


 


“Lien”
has the meaning specified in Section 7.01.


 


9

















 


“Loan”
means an extension of credit by a Lender to the Borrower under Article II
in the form of a Committed Loan or a Swing Line Loan.


 


“Loan
Documents” means this Agreement, each Note, each Issuer Document, and the Fee Letter.


 


“Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual
or contingent), or  condition
(financial or otherwise) of the Borrower and its Subsidiaries taken as a whole;
(b) a material impairment of the ability of the Borrower to perform its
obligations under any Loan Document to which it is a party; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability
against the Borrower of any Loan Document.


 


“Maturity
Date” means the later of (a) May
28, 2009 and (b) if maturity is extended pursuant to  Section 2.14, such extended maturity date as determined
pursuant to such Section.


 


“Moody’s” means Moody’s Investors Service, Inc. and any
successor thereto.


 


“Multiemployer
Plan” means a plan defined as such in Section 3(37) of ERISA and covered by
Title IV of ERISA to which the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has made or accrued an
obligation to make contributions.


 


“Negotiation
Period” has the meaning specified in Section 6.12.


 


“Net Income”
means the consolidated net income of the Borrower and its Consolidated
Subsidiaries.


 


“New
Agreement” has the meaning specified in Section 6.12.


 


“Note”
means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of Exhibit C-1 or Exhibit
C-2.


 


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and
duties of, the Borrower arising under any Loan Document or otherwise with
respect to any Loan or Letter of Credit, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due,
now existing or hereafter arising and including interest and fees that accrue
after the commencement by or against the Borrower or any Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding.


 


“Operating
Income” means the consolidated operating profit of the Borrower and its
Consolidated Subsidiaries computed in the same manner as employed in the Base
Financials, subject, however, to Section 1.03.


 


“Organization
Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with
respect to any limited liability company, the


 


10

















 


certificate or articles of formation or organization and operating
agreement; and (c) with respect to any partnership, joint venture, trust or
other form of business entity, the partnership, joint venture or other
applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with its
formation or organization with the applicable Governmental Authority in the jurisdiction
of its formation or organization and, if applicable, any certificate or
articles of formation or organization of such entity.


 


“Outstanding
Amount” means (a) with respect to Committed Loans and Swing Line Loans on
any date, the aggregate outstanding principal amount thereof after giving
effect to any borrowings and prepayments or repayments of Committed Loans and
Swing Line Loans, as the case may be, occurring on such date; and (b) with
respect to any L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements of outstanding unpaid drawings
under any Letters of Credit or any reductions in the maximum amount available
for drawing under Letters of Credit taking effect on such date.


 


“Participant”
has the meaning specified in Section 10.07(d).


 


“PBGC”
means the Pension Benefit Guaranty Corporation.


 


“Pension
Plan” means any Plan, other than a Multiemployer Plan, that is subject to
Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA
Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an
obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.


 


“Permitted
Guaranties” means the obligations of the Borrower in connection with the
620 Eighth Avenue Project (a) to acquire the entire interest of FC Lion LLC (“FC
Member”) in The New York Times Building LLC and (b) to reimburse FC Member
for all costs of condemning the site of the 620 Eighth Avenue Project that had
been funded by FC Member in excess of $21,000,000.


 


“Permitted
Lien” means:


 


(a)           liens or deposits to
secure payment of workmen’s compensation, unemployment insurance, old age
pensions or other social security;


 


(b)           liens or deposits to
secure performance of bids, tenders, contracts (other than contracts for the
payment of money), or leases, public or statutory obligations, surety or appeal
bonds, or other liens or deposits for purposes of like general nature in the
ordinary course of business;


 


(c)           liens for property
taxes not delinquent and liens for taxes which in good faith are being
contested or litigated in proper proceedings;


 


11

















 


(d)           statutory liens of
landlords or mechanics’, carriers’, workmen’s or other like liens arising in
the ordinary course of business which do not secure obligations for borrowed
money or other extensions of credit;


 


(e)           liens on the property
or assets of any Consolidated Subsidiary securing indebtedness of such
Consolidated Subsidiary to the Borrower or to a Consolidated Subsidiary of the
Borrower;


 


(f)            liens to which the
Required Lenders have given their consent in writing;


 


(g)           liens arising from
security interests granted in order to comply with the requirements for the
issuance of bankers’ acceptances which are eligible for discount by the Federal
Reserve Board;


 


(h)           purchase money security
interests covering real or personal property hereafter acquired, provided that
neither the Borrower nor any Consolidated Subsidiary has any liability to repay
the Indebtedness secured by such purchase money security interests except to
the extent of the respective real or personal property;


 


(i)            liens existing on the
date a Person becomes a Subsidiary or a division of the Borrower, or is merged
into the Borrower or any Subsidiary, provided such liens were not created in
connection with or in contemplation of such transaction or merger and apply
only to the assets of such subsidiary or division;


 


(j)            liens existing on any
property or asset prior to the acquisition thereof by the Borrower or a
Subsidiary, provided such liens were not created in connection with or in
contemplation of such acquisition;


 


(k)           liens which are
renewals, replacements or extensions of any of the Liens permitted by clauses
(e), (f), (h), (i), (j) or (n) hereof
upon the same property theretofore subject thereto and without increase in the
principal amount of debt thereby secured;


 


(l)            liens encumbering
property or assets constituting the College Point Project, as contemplated by
the terms and conditions pursuant to which such project is to be operated;


 


(m)          zoning restrictions,
easements, right-of-way, restrictions on use of real property and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and do not materially detract from the
value of the property subject thereto or interfere with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries;


 


(n)           non material liens on
existing property or assets valued in the aggregate at under $10,000,000;


 


(o)           liens encumbering
property or assets constituting the 620 Eighth Avenue Project, as contemplated
by the terms and conditions pursuant to which such project is to be acquired,
constructed and operated; and


 


12

















 


(p)           any pledge of the
Borrower’s interest in New England Sports Ventures LLC (“NESV”), to
secure obligations of NESV or its subsidiaries, provided that neither
the Borrower nor any Subsidiary has any obligation to repay the obligations
secured by such pledge except to the extent of the pledged assets.


 


“Person”
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.


 


“Plan”
means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA), established or maintained, or to which contributions have been made, by
the Borrower or any ERISA Affiliate, other than a Multiemployer Plan.


 


“Plan Event”
shall mean a “reportable event”, as defined in Section 4043(b) of ERISA and the
regulations issued under such Section, other than any such event with respect
to which the 30-day notice requirement has been waived by the PBGC, and any
Termination Event.


 


“Pro Rata
Share” means, with respect to each Lender at any time, a fraction
(expressed as a percentage, carried out to the ninth decimal place), the
numerator of which is the amount of the Commitment of such Lender at such time
and the denominator of which is the amount of the Aggregate Commitments at such
time; provided that if the commitment of each Lender to make Loans and
the obligation of the L/C Issuer to make L/C Credit Extensions have been
terminated pursuant to Section 8.02, then the Pro Rata Share of each
Lender shall be determined based on the Pro Rata Share of such Lender
immediately prior to such termination and after giving effect to any subsequent
assignments made pursuant to the terms hereof. The initial Pro Rata Share of
each Lender is set forth opposite the name of such Lender on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable.


 


“Register”
has the meaning specified in Section 10.07(c).


 


“Request
for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Committed Loans, a Committed Loan Notice, (b) with respect to
an L/C Credit Extension, a Letter of Credit Application, and (c) with respect
to a Swing Line Loan, a Swing Line Loan Notice.


 


“Required
Lenders” means, as of any date of determination, Lenders having more than 50% of the Aggregate
Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 8.02, Lenders holding in the aggregate more than 50% of the Total
Outstandings (with the aggregate amount of each Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed “held”
by such Lender for purposes of this definition); provided that the
Commitment of, and the portion of the Total Outstandings held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.


 


“Responsible
Officer” means the chief executive officer, president, chief operating
officer, chief financial officer, chairman, vice chairman, any senior or
executive vice president, secretary, treasurer or assistant treasurer of the
Borrower. Any document delivered hereunder that is signed by a Responsible
Officer of the Borrower shall be conclusively presumed to have


 


13

















 


been authorized by all necessary corporate, partnership and/or other action
on the part of the Borrower and such Responsible Officer shall be conclusively
presumed to have acted on behalf of the Borrower.


 


“S&P” means Standard & Poor’s Ratings Services, a
division of The McGraw-Hill Companies, Inc. and any successor thereto.


 


“SEC”
means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.


 


“Significant Subsidiary” means, as of any date, any Consolidated
Subsidiary that:


 


(a)           generated
7% or more of the consolidated revenues of the Borrower and its Consolidated
Subsidiaries during the fiscal year next preceding such date, or


 


(b)           held
7% or more of the consolidated assets of the Borrower and its Consolidated
Subsidiaries as at the end of such fiscal year, a list of such Subsidiaries as
of the date of this Agreement being set forth in Schedule 5.10.


 


“620 Eighth Avenue Project” means the acquisition of the land
located at 620 Eighth Avenue, New York, New York and the development and
construction thereon of a new office building by the Borrower or any
Subsidiaries thereof.


 


“SPC” has the meaning specified in Section 10.07(h).


 


“Stockholders’
Equity” means the sum for the Borrower and its Consolidated Subsidiaries on
a consolidated basis, of capital stock plus additional capital plus earnings
reinvested in the business less treasury stock plus any one time non-cash
reductions in earnings reinvested in the business recorded in accordance with
GAAP.


 


“Subsidiary”
of a Person means any corporation or other entity (whether now existing or
hereafter organized or acquired) of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time
directly or indirectly owned by the Borrower or one or more Subsidiaries, or by
the Borrower and one or more Subsidiaries, other than the inactive corporations
listed in Schedule 5.10. Unless otherwise specified, all references
herein to a “Subsidiary” or to “Subsidiaries” shall refer to a
Subsidiary or Subsidiaries of the Borrower.


 


“Successor
Corporation” means any corporation duly incorporated and existing under the
laws of the United States of America or any state thereof or the District of
Columbia and having substantially all of its assets, taken at their book value,
located within the continental limits of the United States of America, that is
formed by or results from a consolidation or merger with the Borrower, or is
the transferee (by sale, lease or otherwise) of all or substantially all of the
property and assets of the Borrower, and which immediately after and giving
effect to such consolidation, merger, sale, lease or other transfer, would be
lawfully engaged in any business; provided that the Successor Corporation shall
continue to be engaged significantly in the communications business and
businesses related thereto.


 


14

















 


“Swing Line”
means the revolving credit facility made available by the Swing Line Lender
pursuant to Section 2.04.


 


“Swing Line
Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.


 


“Swing Line
Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.


 


“Swing Line
Loan” has the meaning specified in Section 2.04(a).


 


“Swing Line
Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section
2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B.


 


“Swing Line
Sublimit” means an amount equal to the lesser of (a) $20,000,000 and (b) the Aggregate
Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.


 


“Termination
Event” means the filing of a notice of intent to terminate any Plan under
Section 4041(c) of ERISA, the termination of any Pension Plan or Multiemployer
Plan, the complete or partial withdrawal by the Borrower or any ERISA Affiliate
from any Multiemployer Plan pursuant to Subtitle E of Title IV of ERISA, or any
other event or condition which could reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or for the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan.


 


“Total
Outstandings” means the aggregate Outstanding Amount of all Loans and all
L/C Obligations.


 


“Type”
means, with respect to a Committed Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.


 


“United
States” and “U.S.” mean the United States of America.


 


“Unreimbursed
Amount” has the meaning specified in Section 2.03(c)(i).


 


1.02        Other Interpretive
Provisions. With reference to this Agreement and each other Loan Document,
unless otherwise specified herein or in such other Loan Document:


 


(a)           The meanings of defined
terms are equally applicable to the singular and plural forms of the defined
terms.


 


(b)           (i)            The words “herein”, “hereto”,
“hereof” and “hereunder” and words of similar import when used in
any Loan Document shall refer to such Loan Document as a whole and not to any
particular provision thereof.


 


(ii)           Article, Section,
Exhibit and Schedule references are to the Loan Document in which such
reference appears.


 


15

















 


(iii)          The term “including”
is by way of example and not limitation.


 


(iv)          The term “documents”
includes any and all instruments, documents, agreements, certificates, notices,
reports, financial statements and other writings, however evidenced, whether in
physical or electronic form.


 


(c)           In the computation of
periods of time from a specified date to a later specified date, the word “from”
means “from and including”; the words “to” and “until”
each mean “to but excluding”; and the word “through” means “to
and including.”


 


(d)           Section headings herein
and in the other Loan Documents are included for convenience of reference only
and shall not affect the interpretation of this Agreement or any other Loan
Document.


 


1.03        Accounting Terms. (a)  All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP, applied in a manner consistent with that used in
preparing the Consolidated Statements, except as otherwise specifically
prescribed herein.


 


(b)           If at any time any
change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Borrower or the
Required Lenders shall so request, the Administrative Agent, the Lenders and
the Borrower shall negotiate in good faith to amend such ratio or requirement
to preserve the original intent thereof in light of such change in GAAP
(subject to the approval of the Required Lenders); provided that, until
so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.


 


1.04        Rounding. Any financial
ratios required to be maintained by the Borrower pursuant to this Agreement
shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by
which such ratio is expressed herein and rounding the result up or down to the
nearest number (with a rounding-up if there is no nearest number).


 


1.05        References to Agreements
and Laws. Unless otherwise expressly provided herein, (a) references to
Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only
to the extent that such amendments, restatements, extensions, supplements and
other modifications are not prohibited by any Loan Document; and (b) references
to any Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.


 


1.06        Times of Day. Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or
standard, as applicable).


 


16

















 


1.07        Letter of Credit Amounts.
Unless otherwise specified, all references herein to the amount of a Letter of
Credit at any time shall be deemed to mean the maximum face amount of such
Letter of Credit after giving effect to all increases thereof contemplated by
such Letter of Credit or the Issuer Documents related thereto, whether or not
such maximum face amount is in effect at such time.


 


ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01        Committed Loans. Subject
to the terms and conditions set forth herein, each Lender severally agrees to
make loans (each such loan, a “Committed Loan”) to the Borrower from
time to time, on any Business Day during the Availability Period, in an
aggregate amount not to exceed at any time outstanding the amount of such
Lender’s Commitment; provided, however, that after giving effect to any
Committed Borrowing, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans
of any Lender, plus such Lender’s Pro Rata Share of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Commitment. Within the limits of each Lender’s Commitment, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section
2.01, prepay under Section 2.05, and reborrow under this Section
2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as
further provided herein.


 


2.02        Borrowings, Conversions
and Continuations of Committed Loans.


 


(a)           Each Committed
Borrowing, each conversion of Committed Loans from one Type to the other, and
each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than
11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing
of, conversion to or continuation of Eurodollar Rate Loans, and (ii) on the
requested date of any Borrowing of Base Rate Committed Loans. Each telephonic notice by the
Borrower pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower. Each
Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be
in a principal amount of $5,000,000 or a whole multiple of $250,000 in excess
thereof. Except as provided in Sections 2.03(c) and 2.04(c), each
Borrowing of or conversion to Base Rate Committed Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each
Committed Loan Notice (whether telephonic or written) shall specify (i) whether
the Borrower is requesting a Committed Borrowing, a conversion of Committed
Loans from one Type to the other, or a continuation of Eurodollar Rate Loans,
(ii) the requested date of the Borrowing, conversion or continuation, as the
case may be (which shall be a Business Day), (iii) the principal amount of
Committed Loans to be borrowed, converted or continued, (iv) the Type of
Committed Loans to be borrowed or to which existing Committed Loans are to be
converted, and (v) if applicable, the duration of the Interest Period with
respect thereto. If the Borrower fails to specify a Type of Committed Loan in a
Committed Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Committed Loans
shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to


 


17

















 


Base Rate Loans shall be
effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing
of, conversion to, or continuation of Eurodollar Rate Loans in any such
Committed Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.


 


(b)           Following receipt of a
Committed Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Pro Rata Share of the applicable Committed Loans,
and if no timely notice of a conversion or continuation is provided by the Borrower,
the Administrative Agent shall notify each Lender of the details of any
automatic conversion to Base Rate Loans described in the preceding subsection. In
the case of a Committed Borrowing, each Lender shall make the amount of its
Committed Loan available to the Administrative Agent in immediately available
funds at the Administrative Agent’s Office not later than 1:00 p.m. on the
Business Day specified in the applicable Committed Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Credit Extension, Section 4.01),
the Administrative Agent shall make all funds so received available to the
Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of Bank of America with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Borrower; provided,
however, that if, on the date the Committed
Loan Notice with respect to such Borrowing is given by the Borrower, there are
L/C Borrowings outstanding, then the proceeds of such Borrowing, first,
shall be applied to the payment in full of any such L/C Borrowings and, second,
shall be made available to the Borrower as provided above.


 


(c)           Except as otherwise
provided herein, a Eurodollar Rate Loan may be continued or converted only on
the last day of an Interest Period for such Eurodollar Rate Loan. During the
existence of a Default, no Loans may be requested as, converted to or continued
as Eurodollar Rate Loans without the consent of the Required Lenders.


 


(d)           The Administrative
Agent shall promptly notify the Borrower and the Lenders of the interest rate
applicable to any Interest Period for Eurodollar Rate Loans upon determination
of such interest rate. The determination of the Eurodollar Rate by the
Administrative Agent shall be conclusive in the absence of manifest error. At
any time that Base Rate Loans are outstanding, the Administrative Agent shall
notify the Borrower and the Lenders of any change in Bank of America’s prime
rate used in determining the Base Rate promptly following the public
announcement of such change.


 


(e)           After giving effect to
all Committed Borrowings, all conversions of Committed Loans from one Type to
the other, and all continuations of Committed Loans as the same Type, there
shall not be more than ten
Interest Periods in effect with respect to Committed Loans.


 


18

















 


2.03        Letters of Credit.


 


(a)           The Letter of Credit
Commitment.


 


(i)            Subject to the terms
and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon
the agreements of the other Lenders set forth in this Section 2.03, (1)
from time to time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue Letters of Credit for the
account of the Borrower, and to amend or renew Letters of Credit previously issued
by it, in accordance with subsection (b) below, and (2) to honor
drawings under the Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of the and any drawings
thereunder; provided that after giving effect to any L/C Credit
Extension with respect to any Letter of Credit, (x) the Total Outstandings
shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding
Amount of the Committed Loans of any Lender, plus such Lender’s Pro Rata
Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each request by the
Borrower for the issuance or amendment of a Letter of Credit shall be deemed to
be a representation by the Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding sentence.
Within the foregoing limits, and subject to the terms and conditions hereof,
the Borrower’s ability to obtain Letters of Credit shall be fully revolving,
and accordingly the Borrower may, during the foregoing period, obtain Letters
of Credit to replace Letters of Credit that have expired or that have been
drawn upon and reimbursed.


 


(ii)           The L/C Issuer shall
not issue any Letter of Credit, if:


 


(A)          subject to Section
2.03(b)(iii), the expiry date of such requested Letter of Credit would
occur more than twelve months after the date of issuance or last extension,
unless the Required Lenders have approved such expiry date; or


 


(B)           the expiry date of such
requested Letter of Credit would occur after the Letter of Credit Expiration
Date, unless all the Lenders have approved such expiry date.


 


(iii)          The L/C Issuer shall not
be under any obligation to issue any Letter of Credit if:


 


(A)          any order, judgment or
decree of any Governmental Authority or arbitrator shall by its terms purport
to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any
Law applicable to the L/C Issuer or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the
issuance of letters of credit generally or such Letter of Credit in particular
or shall impose upon the L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for


 


19

















 


which the L/C Issuer is
not otherwise compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which
was not applicable on the Closing Date and which the L/C Issuer in good faith
deems material to it; provided that, in such circumstances, the Borrower
may take reasonable steps to obtain the agreement of other L/C Issuers to
otherwise issue such Letter of Credit;


 


(B)           the issuance of such
Letter of Credit would violate any Laws or one or more policies of the L/C
Issuer; provided that, in such circumstances, the Borrower may take
reasonable steps to obtain the agreement of other L/C Issuers to otherwise
issue such Letter of Credit;


 


(C)           except as otherwise
agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is
in an initial face amount less than $100,000, in the case of a commercial
Letter of Credit, or $25,000, in
the case of a standby Letter of Credit;


 


(D)          such Letter of Credit is
to be denominated in a currency other than Dollars;


 


(E)           a default of any Lender’s
obligations to fund under Section 2.03(c) exists or any Lender is at
such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into
satisfactory arrangements with the Borrower or such Lender to eliminate the L/C
Issuer’s risk with respect to such Lender.


 


(iv)          The L/C Issuer shall not
amend any Letter of Credit if the L/C Issuer would not be permitted at such
time to issue such Letter of Credit in its amended form under the terms hereof.


 


(v)           The L/C Issuer shall be
under no obligation to amend any Letter of Credit if (A) the L/C Issuer would
have no obligation at such time to issue such Letter of Credit in its amended form
under the terms hereof, or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.


 


(b)           Procedures for
Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.


 


(i)            Each Letter of Credit
shall be issued or amended, as the case may be, upon the request of the
Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent)
in the form of a Letter of Credit Application, appropriately completed and
signed by a Responsible Officer of the Borrower. Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative Agent not
later than 11:00 a.m. at least two Business Days (or such later date and time
as the Administrative Agent and the L/C Issuer may agree in a particular
instance in their sole discretion) prior to the proposed issuance date or date
of amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify
in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance
date of the requested Letter of Credit (which shall be a Business Day); (B) the
amount thereof; (C)


 


20

















 


the expiry date thereof;
(D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full
text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; and (G) such other matters as the L/C Issuer may require. In
the case of a request for an amendment of any outstanding Letter of Credit,
such Letter of Credit Application shall specify in form and detail satisfactory
to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date
of amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C Issuer may require. Additionally,
the Borrower shall furnish to the L/C Issuer and the Administrative Agent such
other documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.


 


(ii)           Promptly after receipt
of any Letter of Credit Application, the L/C Issuer will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has received a copy of such Letter of Credit Application from the Borrower and,
if not, the L/C Issuer will provide the Administrative Agent with a copy
thereof. Unless the L/C Issuer has received written notice from any Lender, the
Administrative Agent or the Borrower, at least one Business Day prior to the
requested date of issuance or amendment of the applicable Letter of Credit,
that one or more applicable conditions contained in Article IV shall not
then be satisfied, then, subject to the terms and conditions hereof, the L/C
Issuer shall, on the requested date, issue a Letter of Credit for the account
of the Borrower or enter into the applicable amendment, as the case may be, in
each case in accordance with the L/C Issuer’s usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the L/C Issuer a risk participation in such Letter of Credit in
an amount equal to the product of such Lender’s Pro Rata Share times the
amount of such Letter of Credit.


 


(iii)          If the
Borrower so requests in any applicable Letter of Credit Application, the L/C
Issuer may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”); provided that any such Auto-Extension Letter of
Credit must permit the L/C Issuer to prevent any such extension at least once
in each twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not later than
a day (the “Non-Extension Notice Date”) in each such twelve-month period
to be agreed upon at the time such Letter of Credit is issued. Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to make a
specific request to the L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to
have authorized (but may not require) the L/C Issuer to permit the extension of
such Letter of Credit at any time to an expiry date not later than the Letter
of Credit Expiration Date; provided, however, that the L/C Issuer shall not permit
any such extension if (A) the L/C Issuer has determined that it would not be
permitted, or would have no obligation at such time to issue such Letter of
Credit in its revised form (as extended) under the terms hereof (by reason of
the provisions of clause (ii) or (iii) of Section 2.03(a)
or otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five


 


21

















 


Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the Required
Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Borrower that one or more of the
applicable conditions specified in Section 4.02 is not then satisfied,
and in each such case directing the L/C Issuer not to permit such extension.


 


(iv)          Promptly after its
delivery of any Letter of Credit or any amendment to a Letter of Credit to an
advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to the Borrower and the Administrative Agent a true
and complete copy of such Letter of Credit or amendment.


 


(c)           Drawings and
Reimbursements; Funding of Participations.


 


(i)            Upon receipt from the
beneficiary of any Letter of Credit of any notice of a drawing under such
Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 11:00 a.m. on the date of any
payment by the L/C Issuer under a Letter of Credit (each such date, an “Honor
Date”), the Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing. If the
Borrower fails to so reimburse the L/C Issuer by such time, the Administrative
Agent shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such
Lender’s Pro Rata Share thereof. In such event, the Borrower shall be deemed to
have requested a Committed Borrowing of Base Rate Loans to be disbursed on the
Honor Date in an amount equal to the Unreimbursed Amount, without regard to the
minimum and multiples specified in Section 2.02 for the principal amount
of Base Rate Loans, but subject to the amount of the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Committed Loan Notice). Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i)
may be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.


 


(ii)           Each Lender (including
the Lender acting as L/C Issuer) shall upon any notice pursuant to Section
2.03(c)(i) make funds available to the Administrative Agent for the account
of the L/C Issuer at the Administrative Agent’s Office in an amount equal to
its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the
Business Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.03(c)(iii), each Lender that so
makes funds available shall be deemed to have made a Base Rate Committed Loan
to the Borrower in such amount. The Administrative Agent shall remit the funds
so received to the L/C Issuer.


 


(iii)          With respect to any
Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of
Base Rate Loans because the conditions set forth in Section 4.02 cannot
be satisfied or for any other reason, the Borrower shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at the Default Rate.
In such event,


 


22

















 


each Lender’s payment to
the Administrative Agent for the account of the L/C Issuer pursuant to Section
2.03(c)(ii) shall be deemed payment in respect of its participation in such
L/C Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under this Section 2.03.


 


(iv)          Until each Lender funds
its Committed Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Pro Rata Share of such amount shall be
solely for the account of the L/C Issuer.


 


(v)           Each Lender’s
obligation to make Committed Loans or L/C Advances to reimburse the L/C Issuer
for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the L/C Issuer, the Borrower
or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided,
however, that each Lender’s obligation to
make Committed Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by the
Borrower of a Committed Loan Notice). No such making of an L/C Advance shall
relieve or otherwise impair the obligation of the Borrower to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.


 


(vi)          If any Lender fails to
make available to the Administrative Agent for the account of the L/C Issuer
any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender
(acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on
which such payment is immediately available to the L/C Issuer at a rate per
annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause
(vi) shall be conclusive absent manifest error.


 


(d)           Repayment of
Participations.


 


(i)            At any time after the
L/C Issuer has made a payment under any Letter of Credit and has received from
any Lender such Lender’s L/C Advance in respect of such payment in accordance
with Section 2.03(c), if the Administrative Agent receives for the
account of the L/C Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the Borrower or otherwise,
including proceeds of Cash Collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Lender its Pro Rata
Share thereof (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender’s L/C Advance was
outstanding) in the same funds as those received by the Administrative Agent.


 


23

















 


(ii)           If any payment received
by the Administrative Agent for the account of the L/C Issuer pursuant to Section
2.03(c)(i) is required to be returned under any of the circumstances
described in Section 10.06 (including pursuant to any settlement entered
into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Pro Rata Share
thereof on demand of the Administrative Agent, plus interest thereon from the
date of such demand to the date such amount is returned by such Lender, at a
rate per annum equal to the Federal Funds Rate from time to time in effect.


 


(e)           Obligations Absolute.
The obligation of the Borrower to reimburse the L/C Issuer for each drawing
under each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with
the terms of this Agreement under all circumstances, including the following:


 


(i)            any lack of validity
or enforceability of such Letter of Credit, this Agreement, or any other Loan
Document;


 


(ii)           the existence of any
claim, counterclaim, set-off, defense or other right that the Borrower or any
Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the L/C Issuer or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;


 


(iii)          any draft, demand,
certificate or other document presented under such Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under such Letter of Credit;


 


(iv)          any payment by the L/C
Issuer under such Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to
any Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of such
Letter of Credit, including any arising in connection with any proceeding under
any Debtor Relief Law; or


 


(v)           any other circumstance
or happening whatsoever, whether or not similar to any of the foregoing,
including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any Subsidiary.


 


The Borrower
shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance
with the Borrower’s instructions or other irregularity, the Borrower will
immediately notify the L/C Issuer. The Borrower shall be conclusively deemed to
have waived any such claim against the L/C Issuer and its correspondents unless
such notice is given as aforesaid.


 


24

















 


(f)            Role of L/C Issuer.
Each Lender and the Borrower agree that, in paying any drawing under a Letter
of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document. None of the L/C Issuer, any Agent-Related Person
nor any of the respective correspondents, participants or assignees of the L/C
Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the
Required Lenders, as applicable; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Letter of Credit Application. The Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit; provided,
however, that this assumption is not
intended to, and shall not, preclude the Borrower’s pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement. None of the L/C Issuer, any Agent-Related Person, nor any
of the respective correspondents, participants or assignees of the L/C Issuer,
shall be liable or responsible for any of the matters described in clauses
(i) through (v) of Section 2.03(e); provided, however, that anything
in such clauses to the contrary notwithstanding, the Borrower may have a claim
against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to
the extent, but only to the extent, of any direct, as opposed to consequential
or exemplary, damages suffered by the Borrower which the Borrower proves were
caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C
Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.


 


(g)           Cash Collateral.
Upon the request of the Administrative Agent, (i) if the L/C Issuer has honored
any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit
Expiration Date, any Letter of Credit for any reason remains outstanding and
partially or wholly undrawn, the Borrower shall immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations (in an amount equal to such
Outstanding Amount determined as of the date of such L/C Borrowing or the
Letter of Credit Expiration Date, as the case may be). Sections 2.05 and
8.02(c) set forth certain additional requirements to deliver Cash
Collateral hereunder. For purposes of this Section 2.04, Section 2.06
and Section 8.02(c), “Cash Collateralize” means to pledge and
deposit with or deliver to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance satisfactory
to the Administrative Agent and the L/C Issuer (which documents are hereby
consented to by the Lenders). Derivatives of such term have corresponding
meanings. The Borrower hereby grants to the Administrative Agent, for the
benefit of the L/C Issuer and the Lenders, a security interest in all such
cash, deposit accounts 


 


25
















 


and all balances therein
and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, interest bearing deposit accounts at Bank of America.


 


(h)           Applicability of ISP
and UCP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall
apply to each standby Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance shall apply to each
commercial Letter of Credit.


 


(i)            Letter of Credit
Fees. The Borrower shall pay to the Administrative Agent for the account of
each Lender in accordance with its Pro Rata Share a Letter of Credit fee (the “Letter of Credit Fee”) (i) for each
commercial Letter of Credit equal to 1/8 of 1% per annum times the daily
maximum amount available to be drawn under such Letter of Credit (whether or
not such maximum amount is then in effect under such Letter of Credit), and
(ii) for each standby Letter of Credit equal to the Applicable Rate for
Eurodollar Rate Loans times the daily maximum amount available to be
drawn under such Letter of Credit (whether or not such maximum amount is
then in effect under such Letter of Credit). Letter of Credit Fees shall be (i)
computed on a quarterly basis in arrears and (ii) due and payable on the first
Business Day after the end of each March,
June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. If there is any change in the
Applicable Rate during any quarter, the daily maximum amount of each standby
Letter of Credit shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained herein, while any
Event of Default exists, all Letter of Credit Fees shall accrue at the Default
Rate.


 


(j)            Fronting Fee and
Documentary and Processing Charges Payable to L/C Issuer. The Borrower
shall pay directly to each L/C Issuer for its own account a fronting fee of 1/8
of 1% per annum on the aggregate maximum stated amount for each Letter of Credit
issued by such L/C Issuer and outstanding, payable on the actual daily maximum
amount available to be drawn under such Letter of Credit (whether or not such
maximum amount is then in effect under such Letter of Credit). Such fronting
fee shall be computed on a quarterly basis in arrears. Such fronting fee shall
be due and payable on the first Business Day after the end of each March, June,
September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. In addition, the Borrower shall pay directly to each L/C
Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are
nonrefundable.


 


(k)           Conflict with Issuer
Documents. In the event of any conflict between the terms hereof and the
terms of any Issuer Document, the terms hereof shall control.


 


26

















 


2.04        Swing Line Loans.


 


(a)           The Swing Line. Subject
to the terms and conditions set forth herein, the Swing Line Lender agrees to
make loans (each such loan, a “Swing Line Loan”) to the Borrower from
time to time on any Business Day during the Availability Period in an aggregate
amount not to exceed at any time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with the
Pro Rata Share of the Outstanding Amount of Committed Loans and L/C Obligations
of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s
Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) the
Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus
such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender’s Commitment, and provided, further,
that the Borrower shall not use the proceeds of any Swing Line Loan to
refinance any outstanding Swing Line Loan. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.04, prepay under Section 2.05, and reborrow under
this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately
upon the making of a Swing Line Loan, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Swing Line
Lender a risk participation in such Swing Line Loan in an amount equal to the
product of such Lender’s Pro Rata Share times the amount of such Swing
Line Loan.


 


(b)           Borrowing Procedures.
Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice
to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the requested borrowing date,
and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must
be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Promptly after
receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the
Swing Line Lender will confirm with the Administrative Agent (by telephone or
in writing) that the Administrative Agent has also received such Swing Line
Loan Notice and, if not, the Swing Line Lender will notify the Administrative
Agent (by telephone or in writing) of the contents thereof. Unless the Swing
Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Lender) prior to 2:00
p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing
Line Lender not to make such Swing Line Loan as a result of the limitations set
forth in the proviso to the first sentence of Section 2.04(a), or (B)
that one or more of the applicable conditions specified in Article IV is
not then satisfied, then, subject to the terms and conditions hereof, the Swing
Line Lender will, not later than 3:00 p.m. on the borrowing date specified in
such Swing Line Loan Notice, make the amount of its Swing Line Loan available
to the Borrower.


 


(c)           Refinancing of Swing
Line Loans.


 


(i)            The Swing Line Lender
at any time in its sole and absolute discretion may request, on behalf of the
Borrower (which hereby irrevocably authorizes the Swing Line


 


27

















 


Lender to so request on
its behalf), that each Lender make a Base Rate Committed Loan in an amount
equal to such Lender’s Pro Rata Share of the amount of Swing Line Loans then
outstanding. Such request shall be made in writing (which written request shall
be deemed to be a Committed Loan Notice for purposes hereof) and in accordance
with the requirements of Section 2.02, without regard to the minimum and
multiples specified therein for the principal amount of Base Rate Loans, but
subject to the unutilized portion of the Aggregate Commitments and the
conditions set forth in Section 4.02. The Swing Line Lender shall
furnish the Borrower with a copy of the applicable Committed Loan Notice
promptly after delivering such notice to the Administrative Agent. Each Lender
shall make an amount equal to its Pro Rata Share of the amount specified in
such Committed Loan Notice available to the Administrative Agent in immediately
available funds for the account of the Swing Line Lender at the Administrative
Agent’s Office not later than 1:00 p.m. on the day specified in such Committed
Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that
so makes funds available shall be deemed to have made a Base Rate Committed
Loan to the Borrower in such amount. The Administrative Agent shall remit the
funds so received to the Swing Line Lender.


 


(ii)           If for any reason any
Swing Line Loan cannot be refinanced by such a Committed Borrowing in
accordance with Section 2.04(c)(i), the request for Base Rate Committed
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to
be a request by the Swing Line Lender that each of the Lenders fund its risk
participation in the relevant Swing Line Loan and each Lender’s payment to the
Administrative Agent for the account of the Swing Line Lender pursuant to Section
2.04(c)(i) shall be deemed payment in respect of such participation.


 


(iii)          If any Lender fails to
make available to the Administrative Agent for the account of the Swing Line
Lender any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such
Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the Swing Line Lender at
a rate per annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause
(iii) shall be conclusive absent manifest error.


 


(iv)          Each Lender’s obligation
to make Committed Loans or to purchase and fund risk participations in Swing
Line Loans pursuant to this Section 2.04(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
set-off, counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however,
that each Lender’s obligation to make Committed Loans pursuant to this Section
2.04(c) is subject to the conditions set forth in Section 4.02. No
such funding of risk participations shall relieve or otherwise impair the
obligation of the Borrower to repay Swing Line Loans, together with interest as
provided herein.


 


28

















 


(d)           Repayment of
Participations.


 


(i)            At any time after any
Lender has purchased and funded a risk participation in a Swing Line Loan, if
the Swing Line Lender receives any payment on account of such Swing Line Loan,
the Swing Line Lender will distribute to such Lender its Pro Rata Share of such
payment (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender’s risk participation was funded) in
the same funds as those received by the Swing Line Lender.


 


(ii)           If any payment received
by the Swing Line Lender in respect of principal or interest on any Swing Line
Loan is required to be returned by the Swing Line Lender under any of the
circumstances described in Section 10.06 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each
Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on demand
of the Administrative Agent, plus interest thereon from the date of such demand
to the date such amount is returned, at a rate per annum equal to the Federal
Funds Rate. The Administrative Agent will make such demand upon the request of
the Swing Line Lender.


 


(e)           Interest for Account
of Swing Line Lender. The Swing Line Lender shall be responsible for
invoicing the Borrower for interest on the Swing Line Loans. Until each Lender
funds its Base Rate Committed Loan or risk participation pursuant to this Section
2.04 to refinance such Lender’s Pro Rata Share of any Swing Line Loan,
interest in respect of such Pro Rata Share shall be solely for the account of
the Swing Line Lender.


 


(f)            Payments Directly
to Swing Line Lender. The Borrower shall make all payments of principal and
interest in respect of the Swing Line Loans directly to the Swing Line Lender.


 


2.05        Prepayments.


 


(a)           The Borrower may, upon
notice to the Administrative Agent, at any time or from time to time
voluntarily prepay Committed Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to
any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurodollar Rate
Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Committed
Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding. Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Committed Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender’s Pro Rata Share of such
prepayment. If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein. Any prepayment of a Eurodollar Rate
Loan shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05. Each such
prepayment shall be applied to the Committed Loans of the Lenders in accordance
with their respective Pro Rata Shares.


 


29

















 


(b)           The Borrower may, upon
notice to the Swing Line Lender (with a copy to the Administrative Agent), at
any time or from time to time, voluntarily prepay Swing Line Loans in whole or
in part without premium or penalty; provided that (i) such notice must
be received by the Swing Line Lender and the Administrative Agent not later
than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment
shall be in a minimum principal amount of $100,000. Each such notice shall
specify the date and amount of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein.


 


(c)           If for any reason the
Total Outstandings at any time exceed the Aggregate Commitments then in effect,
the Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided, however, that the
Borrower shall not be required to Cash Collateralize the L/C Obligations
pursuant to this Section 2.05(c) unless after the prepayment in full of
the Committed Loans and Swing Line Loans, the Total Outstandings exceed the
Aggregate Commitments then in effect.


 


2.06        Termination or Reduction
of Commitments.


 


(a)           The Borrower shall have
the right, upon at least two Business Days’ notice to the Administrative Agent,
to terminate in whole or permanently reduce ratably in part the unused portions
of the respective Commitments of the Lenders; provided that (i) each
partial reduction shall be in the aggregate amount of $1,000,000 or an integral
multiple thereof; (ii) the Borrower shall not terminate or reduce the Aggregate
Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Outstandings would exceed the Aggregate Commitments; and
(iii) if, after giving effect to any reduction of the Aggregate Commitments,
the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of
the Aggregate Commitments, such Sublimit shall be automatically reduced by the
amount of such excess. The Administrative Agent will promptly notify the Lenders
of any such notice of termination or reduction of the Aggregate Commitments. Any
reduction of the Aggregate Commitments shall be applied to the Commitment of
each Lender according to its Pro Rata Share. All fees accrued until the
effective date of any termination of the Aggregate Commitments shall be paid on
the effective date of such termination.


 


(b)           On or after the
expiration of the Negotiation Period, if the parties hereto shall have failed
to enter into a New Agreement before the end of the Negotiation Period, the
Administrative Agent shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrower, declare the obligation of each
Lender to make Credit Extensions to be terminated, whereupon the same shall
forthwith terminate (with the result that each Lender’s Commitment shall
forthwith terminate), and upon such termination, all commitment fees accrued to
the date of such termination shall automatically be due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower.


 


2.07        Repayment of Loans.


 


(a)           The Borrower shall
repay to the Lenders on the Maturity Date the aggregate principal amount of
Committed Loans outstanding on such date.


 


30

















 


(b)           The Borrower shall
repay each Swing Line Loan on the earlier to occur of (i) the date ten Business
Days after such Loan is made and (ii) the Maturity Date.


 


2.08        Interest.


 


(a)           Subject to the
provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest
Period at a rate per annum equal to the Eurodollar Rate for such Interest
Period plus the Applicable Rate; (ii) each Base Rate Committed Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate; and (iii)
each Swing Line Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the
Base Rate plus the Applicable Rate.


 


(b)           (i)            If any amount of principal or any Loan is
not paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by Applicable Laws.


 


(ii)           If any amount (other
than principal of any Loan) payable by the Borrower under any Loan Document is
not paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, then upon the request of the
Required Lenders, such amount shall thereafter bear interest at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.


 


(iii)          Upon the request of the Required Lenders, while any Event of
Default exists, the Borrower shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.


 


(iv)          Accrued and unpaid
interest on past due amounts (including interest on past due interest) shall be
due and payable upon demand.


 


(c)           Interest on each Loan
shall be due and payable in arrears on each Interest Payment Date applicable
thereto and at such other times as may be specified herein. Interest hereunder
shall be due and payable in accordance with the terms hereof before and after
judgment, and before and after the commencement of any proceeding under any
Debtor Relief Law.


 


2.09        Fees. In addition to
certain fees described in subsections (i) and (j) of Section 2.03:


 


(a)           Facility
Fee. The Borrower agrees to pay to the Administrative Agent for the account
of each Lender a facility fee at the Applicable Rate for the Facility Fee (as
set forth in the definition of “Applicable Rate”) for each day as set forth in
the definition of “Applicable Rate” which fee shall accrue (i) from the date
hereof in the case of any Lender as of the date of this Agreement and from the
effective date specified in the Assignment and Assumption


 


31

















 


pursuant to which it
became a Lender in the case of each other Lender to but excluding the Maturity
Date (or earlier date of termination of the Commitments in their entirety), on
the daily amount of such Lender’s Commitment (whether used or unused) and (ii)
from and including the Maturity Date or such earlier date of termination to but
excluding the date the Loans shall be repaid in their entirety, on the daily
aggregate outstanding principal amount of such Lender’s Loans. Accrued fees under
this Section shall be payable on the last Business Day of each March, June,
September and December during the term of such Lender’s Commitment, commencing
June 30, 2004, and on the date of termination of the Commitments in their
entirety (and, if later, the date the Loans shall be repaid in their entirety).


 


(b)           Utilization
Fee. The Borrower agrees to pay to the Administrative Agent for the account
of each Lender a utilization fee on the outstanding principal amount of all
Loans and L/C Obligations at the Applicable Rate for the Utilization Fee (as
set forth in the definition of “Applicable Rate”), which fee shall be payable
quarterly on the last Business Day of each March, June, September and December,
for any days during the quarter on which the outstanding principal amount of
all Loans and L/C Obligations exceed 50% of the Aggregate Commitments.


 


(c)           Other Fees. (i)  The Borrower shall pay to the Administrative
Agent for its own account fees in the amounts and at the times specified in the
Fee Letter. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.


 


(ii)           The
Borrower shall pay to the Lenders such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified. Such fees
shall be fully earned when paid and shall not be refundable for any reason
whatsoever.


 


2.10        Computation of Interest
and Fees. All computations of interest for Base Rate Loans when the Base
Rate is determined by Bank of America’s “prime rate” shall be made on the basis
of a year of 365 or 366 days, as the case may be, and actual days elapsed. All
other computations of fees and interest shall be made on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed. Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue
on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid, provided that any Loan that is repaid on the same day
on which it is made shall, subject to Section 2.12(a), bear interest for
one day.


 


2.11        Evidence of Debt.


 


(a)           The Credit Extensions
made by each Lender shall be evidenced by one or more accounts or records
maintained by such Lender and by the Administrative Agent in the ordinary
course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be conclusive absent manifest error of the amount
of the Credit Extensions made by the Lenders to the Borrower and the interest
and payments thereon. Any failure to so record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to the Obligations. In the event
of any conflict between the accounts and records maintained by any Lender and
the accounts and records of the Administrative Agent in respect of such
matters, the accounts and records of the Administrative Agent shall control in
the absence of manifest error. Upon the request of any Lender made through the
Administrative Agent, the Borrower shall execute and deliver to such Lender 


 


32

















 


(through the
Administrative Agent) a Note, which shall evidence such Lender’s Loans in
addition to such accounts or records. Each Lender may attach schedules to its
Note and endorse thereon the date, Type (if applicable), amount and maturity of
its Loans and payments with respect thereto.


 


(b)           In addition to the
accounts and records referred to in subsection (a), each Lender and the Administrative
Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters
of Credit and Swing Line Loans. In the event of any conflict between the
accounts and records maintained by the Administrative Agent and the accounts
and records of any Lender in respect of such matters, the accounts and records
of the Administrative Agent shall control in the absence of manifest error.


 


2.12        Payments Generally.


 


(a)           All payments to be made
by the Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the Administrative Agent’s Office in Dollars and in
immediately available funds not later than 2:00 p.m. on the date specified
herein. The Administrative Agent will promptly distribute to each Lender its
Pro Rata Share (or other applicable share as provided herein) of such payment
in like funds as received by wire transfer to such Lender’s Lending Office. All
payments received by the Administrative Agent after 2:00 p.m. shall be deemed
received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue.


 


(b)           If any payment to be
made by the Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.


 


(c)           Unless the Borrower or
any Lender has notified the Administrative Agent, prior to the date any payment
is required to be made by it to the Administrative Agent hereunder, that the
Borrower or such Lender, as the case may be, will not make such payment, the
Administrative Agent may assume that the Borrower or such Lender, as the case
may be, has timely made such payment and may (but shall not be so required to),
in reliance thereon, make available a corresponding amount to the Person
entitled thereto. If and to the extent that such payment was not in fact made
to the Administrative Agent in immediately available funds, then:


 


(i)            if the Borrower failed
to make such payment, each Lender shall forthwith on demand repay to the
Administrative Agent the portion of such assumed payment that was made
available to such Lender in immediately available funds, together with interest
thereon in respect of each day from and including the date such amount was made
available by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds at the
Federal Funds Rate from time to time in effect; and


 


33

















 


(ii)           if any Lender failed to
make such payment, such Lender shall forthwith on demand pay to the
Administrative Agent the amount thereof in immediately available funds,
together with interest thereon for the period from the date such amount was
made available by the Administrative Agent to the Borrower to the date such
amount is recovered by the Administrative Agent (the “Compensation Period”)
at a rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender’s Committed Loan included in the applicable
Borrowing. If such Lender does not pay such amount forthwith upon the
Administrative Agent’s demand therefor, the Administrative Agent may make a
demand therefor upon the Borrower, and the Borrower shall pay such amount to
the Administrative Agent, together with interest thereon for the Compensation
Period at a rate per annum equal to the rate of interest applicable to the
applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its Commitment or to prejudice any rights which the
Administrative Agent or the Borrower may have against any Lender as a result of
any default by such Lender hereunder.


 


A notice of
the Administrative Agent to any Lender or the Borrower with respect to any
amount owing under this subsection (c) shall be conclusive, absent manifest
error.


 


(d)           If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such funds
are not made available to the Borrower by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article IV
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.


 


(e)           The obligations of the
Lenders hereunder to make Committed Loans and to fund participations in Letters
of Credit and Swing Line Loans are several and not joint. The failure of any
Lender to make any Committed Loan or to fund any such participation on any date
required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Committed Loan or purchase its
participation.


 


(f)            Nothing herein shall
be deemed to obligate any Lender to obtain the funds for any Loan in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan in any particular place
or manner.


 


2.13        Sharing of Payments. If,
other than as expressly provided elsewhere herein, any Lender shall obtain on
account of the Committed Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it, any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated hereunder) thereof,
such Lender shall immediately (a) notify the Administrative Agent of such fact,
and (b) purchase from the other Lenders such participations in the Committed
Loans made by them and/or such subparticipations in the participations in L/C
Obligations or Swing Line Loans held by them, as the case may be, as shall be
necessary to cause such purchasing Lender to share the excess payment in
respect of such Committed Loans


 


34

















 


or such participations,
as the case may be, pro rata with each of them; provided,
however, that if all or any portion of such
excess payment is thereafter recovered from the purchasing Lender under any of
the circumstances described in Section 10.06 (including pursuant to any
settlement entered into by the purchasing Lender in its discretion), such
purchase shall to that extent be rescinded and each other Lender shall repay to
the purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender’s ratable share (according to the proportion of (i)
the amount of such paying Lender’s required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid
or payable by the purchasing Lender in respect of the total amount so
recovered, without further interest thereon. The Borrower agrees that any
Lender so purchasing a participation from another Lender may, to the fullest
extent permitted by law, exercise all its rights of payment (including the
right of set-off, but subject to Section 10.09) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. The Administrative Agent will
keep records (which shall be conclusive and binding in the absence of manifest
error) of participations purchased under this Section and will in each case
notify the Lenders following any such purchases or repayments. Each Lender that
purchases a participation pursuant to this Section shall from and after such
purchase have the right to give all notices, requests, demands, directions and
other communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.


 


2.14        Extension of Maturity
Date.


 


(a)           The Borrower may, not
later than 30 days prior to any anniversary of the date of this Agreement (such
anniversary being a “Modification Date”) by written notice in the form
of Exhibit  G
hereto (an “Extension Request”) (which shall be irrevocable; provided, however,
that the Borrower may revoke such notice at any time that Lenders having more
that 50% of the Aggregate Commitments have notified the Administrative Agent or
the Borrower that such Lenders do not consent to such requested extension or
are deemed to not have consented to such requested extension, as provided
below) to the Administrative Agent (which shall promptly notify each of the
Lenders), request the Lenders to extend the then applicable Maturity Date for
one year to the anniversary of the then applicable Maturity Date and may, in
any such Extension Request, request the addition of one or more new Lenders,
and/or the increase or decrease in, or termination of, the Commitment of any
existing Lender under this Agreement, effective in each case as of the
Modification Date. If the Borrower shall make such a request, each Lender
shall, not later than ten Business Days prior to the Modification Date, notify
the Borrower and the Administration Agent by executing the Extension Request if
it consents to such extension of the then applicable Maturity Date and to each
other change requested in the Extension Request. Any Lender that shall not so
notify the Borrower shall be deemed not to have consented. If all the Lenders
shall so consent, the Maturity Date shall thereupon be extended, any new Lender
shall be added, and any existing Lender’s Commitment shall be increased,
decreased or terminated in each case as provided in the Extension Request. If
any Lender shall not so consent, then, unless either


 


(i)            by the then applicable
Modification Date all the Loans of all the nonconsenting Lenders shall have
been paid in full, together with all interest accrued thereon through such
Modification Date, or


 


35

















 


(ii)           by the then applicable
Modification Date all Loans, and all Commitments, of such nonconsenting Lenders
shall have been assigned to one or more Eligible Assignees (who have consented
to the extension of the then applicable Maturity Date by one year to the next
anniversary of the then applicable Maturity Date and to each other change
requested in the Extension Request) in accordance with the provisions of Section
10.07,


 


(and in case of any such
payment or assignment of any Eurodollar Rate Loan, the Borrower shall have
reimbursed the nonconsenting Lenders in respect thereof pursuant to Section
3.05(a)) the then applicable Maturity Date shall not be so extended, no new
Lender shall be added, and no Lender’s Commitment shall be increased, decreased
or terminated. Subject to the provisions of Section 8.01, if either of
the conditions set forth in clauses (i) or (ii) above shall have
been satisfied, then on the Modification Date, (A) such Maturity Date shall be
extended by one year to the next anniversary of the then applicable Maturity
Date, any new Lender shall be added, and any existing Lender’s Commitment shall
be increased, decreased or terminated in each case as provided in the Extension
Request and (B) all of the Commitments of all nonconsenting Lenders shall be
automatically reduced to zero.


 


(b)           This Section shall
supersede any provisions in Section 2.13 or 10.01 to the
contrary.


 


ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01        Taxes.


 


(a)           Any and all payments by
the Borrower to or for the account of the Administrative Agent or any Lender
under any Loan Document shall be made free and clear of and without deduction
for any and all present or future taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and all liabilities with
respect thereto, excluding, in the case of the Administrative Agent and
each Lender, taxes imposed on or measured by its overall net income, and
franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the Laws of which the
Administrative Agent or such Lender, as the case may be, is organized or
maintains a lending office (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as “Taxes”). If the Borrower
shall be required by any Laws to deduct any Taxes from or in respect of any sum
payable under any Loan Document to the Administrative Agent or any Lender, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section), each of the Administrative Agent and such Lender receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions, (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Laws, and (iv) within 30 days after the
date of such payment, the Borrower shall furnish to the Administrative Agent
(which shall forward the same to such Lender) the original or a certified copy
of a receipt evidencing payment thereof.


 


36

















 


(b)           In addition, the
Borrower agrees to pay any and all present or future stamp, court or
documentary taxes and any other excise or property taxes or charges or similar
levies which arise from any payment made under any Loan Document or from the
execution, delivery, performance, enforcement or registration of, or otherwise
with respect to, any Loan Document (hereinafter referred to as “Other Taxes”).


 


(c)           If the Borrower shall
be required to deduct or pay any Taxes or Other Taxes from or in respect of any
sum payable under any Loan Document to the Administrative Agent or any Lender,
the Borrower shall also pay to the Administrative Agent or to such Lender, as
the case may be, at the time interest is paid, such additional amount that the
Administrative Agent or such Lender specifies is necessary to preserve the
after-tax yield (after factoring in all taxes, including taxes imposed on or
measured by net income) that the Administrative Agent or such Lender would have
received if such Taxes or Other Taxes had not been imposed.


 


(d)           The Borrower agrees to
indemnify the Administrative Agent and each Lender for (i) the full amount of
Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted
by any jurisdiction on amounts payable under this Section) paid by the
Administrative Agent and such Lender, (ii) amounts payable under Section
3.01(c) and (iii) any liability (including additions to tax, penalties,
interest and expenses) arising therefrom or with respect thereto, in each case
whether or not such Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. Payment under this subsection
(d) shall be made within 30 days after the date the Lender or the
Administrative Agent makes a demand therefor.


 


3.02        Illegality. If any
Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine
or charge interest rates based upon the Eurodollar Rate, then, on notice
thereof by such Lender to the Borrower through the Administrative Agent, any
obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Committed Loans to Eurodollar Rate Loans shall be suspended
until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt
of such notice, the Borrower shall, upon demand from such Lender (with a copy
to the Administrative Agent), prepay or, if applicable, convert all Eurodollar
Rate Loans of such Lender to Base Rate Loans, either on the last day of the
Interest Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.


 


3.03        Inability to Determine
Rates. If the Required Lenders determine that for any reason adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
that the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost
to such Lenders of funding such Loan, the Administrative


 


37

















 


Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice. Upon receipt of such notice, the Borrower may revoke any pending
request for a Borrowing of, conversion to or continuation of Eurodollar Rate
Loans or, failing that, will be deemed to have converted such request into a
request for a Committed Borrowing of Base Rate Loans in the amount specified therein.


 


3.04        Increased
Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans.


 


(a)           If any Lender
determines that as a result of the introduction of or any change in or in the
interpretation of any Law, or such Lender’s compliance therewith, there shall
be any increase in the cost to such Lender of agreeing to make or making,
funding or maintaining Eurodollar Rate Loans or (as the case may be) issuing or
participating in Letters of Credit, or a reduction in the amount received or
receivable by such Lender in connection with any of the foregoing (excluding
for purposes of this subsection (a) any such increased costs or reduction in
amount resulting from (i) Taxes or Other Taxes (as to which Section 3.01
shall govern), (ii) changes in the basis of taxation of overall net income or
overall gross income by the United States or any foreign jurisdiction or any
political subdivision of either thereof under the Laws of which such Lender is
organized or has its Lending Office, and (iii) reserve requirements contemplated by Section 3.04(c)),
then from time to time upon demand of such Lender (with a copy of such demand
to the Administrative Agent), the Borrower shall pay to such Lender such
additional amounts as will compensate such Lender for such increased cost or
reduction.


 


(b)           If any Lender
determines that the introduction of any Law regarding capital adequacy or any
change therein or in the interpretation thereof, or compliance by such Lender
(or its Lending Office) therewith, has the effect of reducing the rate of
return on the capital of such Lender or any corporation controlling such Lender
as a consequence of such Lender’s obligations hereunder (taking into
consideration its policies with respect to capital adequacy and such Lender’s
desired return on capital), then from time to time upon demand of such Lender
(with a copy of such demand to the Administrative Agent), the Borrower shall
pay to such Lender such additional amounts as will compensate such Lender for
such reduction.


 


(c)           The Borrower shall pay
to each Lender, as long as such Lender shall be required to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency
funds or deposits (currently known as “Eurocurrency liabilities”), additional
interest on the unpaid principal amount of each Eurodollar Rate Loan equal to
the actual costs of such reserves allocated to such Loan by such Lender (as
determined by such Lender in good faith, which determination shall be
conclusive), which shall be due and payable on each date on which interest is
payable on such Loan; provided that, the Borrower shall have received at
least 15 days’ prior notice (with a copy to the Administrative Agent) of such
additional interest from such Lender. If a Lender fails to give notice 15 days
prior to the relevant Interest Payment Date, such additional interest shall be
due and payable 15 days from receipt of such notice.


 


38

















 


3.05        Compensation for Losses.
Upon demand of any Lender (with a copy to the Administrative Agent) from time
to time, the Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it as a result of:


 


(a)           any continuation,
conversion, payment or prepayment of any Loan other than a Base Rate Loan on a
day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or


 


(b)           any failure by the
Borrower (for a reason other than the failure of such Lender to make a Loan) to
prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the
date or in the amount notified by the Borrower;


 


including any
loss of anticipated profits and any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.


 


For purposes
of calculating amounts payable by the Borrower to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan
made by it at the Eurodollar
Rate  for such Loan by a
matching deposit or other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.


 


3.06        Matters
Applicable to all Requests for Compensation. A certificate of the
Administrative Agent or any Lender claiming compensation under this Article
III and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In determining
such amount, the Administrative Agent or such Lender may use any reasonable
averaging and attribution methods.


 


3.07        Survival. All of the
Borrower’s obligations under this Article III shall survive termination
of the Aggregate Commitments and repayment of all other Obligations hereunder.


 


ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


4.01        Conditions of Initial
Credit Extension. The obligation of each Lender to make its initial Credit
Extension hereunder is subject to satisfaction of the following conditions
precedent:


 


(a)           The Administrative
Agent’s receipt of the following, each of which shall be originals or
facsimiles (followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the Borrower, each dated the Closing
Date (or, in the case of certificates of governmental officials, a recent date
before the Closing Date) and each in form and substance satisfactory to the
Administrative Agent and each of the Lenders:


 


(i)            executed counterparts
of this Agreement, sufficient in number for distribution to the Administrative
Agent, each Lender and the Borrower;


 


39

















 


(ii)           a Note executed by the
Borrower in favor of each Lender requesting a Note;


 


(iii)          such certificates of resolutions
or other action, incumbency certificates and/or other certificates of
Responsible Officers of the Borrower as the Administrative Agent may require
evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents;


 


(iv)          such documents and
certifications as the Administrative Agent may reasonably require to evidence
that the Borrower is duly organized or formed, and that the Borrower is validly
existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such
qualification, except to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect;


 


(v)           a favorable opinion of
a Senior Counsel of the Borrower, addressed to the Administrative Agent and
each Lender, as to the matters set forth in Exhibit F and such other
matters concerning the Borrower and the Loan Documents as the Required Lenders
may reasonably request;


 


(vi)          a certificate signed by
a Responsible Officer of the Borrower certifying (A) that the conditions
specified in Sections 4.02(a) and (b) have been satisfied;  (B) that there
has been no event or circumstance since the date of the Base Financials that
has had, either individually or in the aggregate, a Material Adverse Effect;
and (C) the current Debt Ratings;


 


(vii)         a duly completed
Compliance Certificate as of the last day of the fiscal quarter of the Borrower
most recently ended prior to the Closing Date, signed by a Responsible Officer
of the Borrower;


 


(viii)        [Intentionally Reserved];
and


 


(ix)           such other assurances,
certificates, documents, consents or opinions as the Administrative Agent, the
L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may
require.


 


(b)           Any fees required to be
paid on or before the Closing Date shall have been paid.


 


(c)           Unless
waived by the Administrative Agent, the Borrower shall have paid all Attorney
Costs of the Administrative Agent to the extent invoiced prior to or on the
Closing Date, plus such additional amounts of Attorney Costs as shall
constitute its reasonable estimate of Attorney Costs incurred or to be incurred
by it through the closing proceedings (provided that such estimate shall
not thereafter preclude a final settling of accounts between the Borrower and
the Administrative Agent).


 


40

















 


4.02        Conditions to all Credit
Extensions. The obligation of each Lender to honor any Request for Credit
Extension (other than a Committed Loan Notice requesting only a conversion of
Committed Loans to the other Type, or a continuation of Eurodollar Rate Loans)
is subject to the following conditions precedent:


 


(a)           The representations and
warranties of the Borrower contained in Article V (other than the second
sentence of Section 5.05) shall be true and correct in all material
respects on and as of the date of such Credit Extension, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct as of such earlier date, and
except that for purposes of this Section 4.02, the representations and
warranties contained in Section 5.05 (except for the second sentence
thereof) shall be deemed to include the most recent statements furnished
pursuant to clauses (a) and (b) of Section 6.01.


 


(b)           No Default shall exist,
or would result from such proposed Credit Extension.


 


(c)           The Administrative
Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have
received a Request for Credit Extension in accordance with the requirements
hereof.


 


Each Request
for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Committed Loans to the other Type or a continuation of Eurodollar
Rate Loans) submitted by the Borrower shall be deemed to be a representation
and warranty that the conditions specified in Sections 4.02(a) and (b)
have been satisfied on and as of the date of the applicable Credit Extension.


 


ARTICLE V.

REPRESENTATIONS AND WARRANTIES


 


The Borrower
represents and warrants to the Administrative Agent and the Lenders that:


 


5.01        Existence; Qualification
and Power. The Borrower and each of its Subsidiaries is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized, and the Borrower and each of its Significant
Subsidiaries is duly qualified to transact business in all places where, in the
opinion of counsel to the Borrower, such qualification is necessary except
where failure to qualify would not have a Material Adverse Effect.


 


5.02        Authorization; No
Contravention. The execution, delivery and performance by the Borrower of
this Agreement and the Notes are within the Borrower’s corporate powers, have
been duly authorized by all necessary corporate action, and do not contravene
(a) the Borrower’s charter or by-laws or (b) any law or any contractual
restriction binding on or affecting the Borrower.


 


5.03        Governmental Authorization; Other Consents. No  authorization or approval or other action
by, and no notice to or filing with, any Governmental Authority or regulatory
body is required for the due execution, delivery and performance by the
Borrower of this Agreement or the Notes, except for the possible filing of
informational reports with the Securities and Exchange Commission and the New
York Stock Exchange (or other exchanges on which the Borrower’s securities may
be listed) which may have to be made as a result of performance but none of
which would be required as a condition to performance.


 


41

















 


5.04        Binding Effect. This
Agreement is, and the Notes when delivered hereunder will be, legal, valid and
binding obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms, subject (a) as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency and other laws
affecting creditors’ right generally and (b) to general equitable principles.


 


5.05        Financial Statements; No
Material Adverse Effect. The Base Financials, copies of which have been
furnished to each Lender, fairly present in all material respects the consolidated
financial condition of the Borrower and its Consolidated Subsidiaries as at the
date of the Base Financials and the consolidated results of their operations
for the year ended on said date, all in accordance with GAAP. Since said date
there has been no event or circumstance, either individually or in the
aggregate, that has had or could reasonably be expected to have a Material
Adverse Effect. Except as disclosed in the Base Financials, on said date the
Borrower and its Consolidated Subsidiaries did not have any contingent
liabilities or liabilities for taxes which are material to the Borrower and its
Consolidated Subsidiaries taken as a whole.


 


5.06        Litigation. There is
no pending or, to the knowledge of the Borrower, threatened, action or proceeding
affecting the Borrower or any of its Subsidiaries before any court,
Governmental Authority or arbitrator, which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect (other than pending or
threatened libel suits in which adverse determinations are unlikely), or which
purports to affect the legality, validity or enforceability of this Agreement
or any Note.


 


5.07        Use of Proceeds. The proceeds of the Credit Extensions made
hereunder will be used for general corporate purposes, including, without
limitation, any act by the Borrower permitted by its charter and applicable law
and not otherwise prohibited by this Agreement. The Borrower is not engaged in
the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System), and no proceeds of any Credit
Extension will be used in a manner as would cause the transactions contemplated
hereby to violate Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System. Following application of the proceeds of each Credit
Extension, not more than 25% of the value of the assets (of the Borrower and
its Consolidated Subsidiaries) subject to Sections 7.01 and 7.02
will be margin stock.


 


5.08        Ownership of Property;
Liens. The Borrower and its Subsidiaries each has good title to all of its
properties and assets reflected in the Base Financials (except such as have
been disposed of in the ordinary course of business or leased property or
leased assets), free and clear of all mortgages, liens and encumbrances, except
Permitted Liens or other Liens which will not interfere with the occupation,
use and enjoyment by the Borrower or its Subsidiaries of such properties and
assets in the normal course of business of the Borrower and its Subsidiaries
and non-material encumbrances valued in the aggregate under $10,000,000.


 


5.09        Taxes. The  Borrower
and each of its Subsidiaries have filed all material tax returns required to be
filed (taking into account any and all extensions of filing due dates obtained
by the Borrower or a Subsidiary) and paid all taxes shown thereon to be due,
including interest and penalties, or provided adequate accruals for payment
thereof. Except as set forth in the Base Financials or in Schedule 5.09,
neither the Borrower nor any of its Subsidiaries is a


 


42

















 


party to any action or to
any proceeding by any governmental authority for the assessment or collection
of taxes which are material, nor has any claim (which remains pending) for
assessment or collection of taxes which are material been asserted against it.


 


5.10        Subsidiaries. Schedule
5.10  hereto is a complete and
correct list of (a) each Subsidiary that, as of the date of this Agreement,
constitutes a Consolidated Subsidiary and (b) each Subsidiary that, as of the
date of this Agreement, constitutes a Significant Subsidiary. All shares of
capital stock of all Subsidiaries owned by the Borrower on the date hereof are
owned by the Borrower or a Subsidiary free and clear of all liens, charges,
encumbrances and rights of others whatsoever, and all outstanding shares of
capital stock of the Subsidiaries are validly issued and fully paid.


 


5.11        ERISA Compliance. The
Borrower and each of its ERISA Affiliates (a) have met their minimum funding
requirements under ERISA and the Code with respect to all of their Plans, (b)
are in substantial compliance with respect to each of their Plans with the
applicable provisions of ERISA and any other applicable federal or state law
including, where applicable, the qualification requirements of Subchapters D
and F of Chapter 1 of Subtitle A of the Code, except that certain Plan
amendments required by the Code and Treasury regulations in order to so qualify
(the remedial amendment period for which amendment has not expired) may not
have yet been made, but will be made on a timely basis, provided that all of
the Plans of the Borrower and each of its ERISA Affiliates have been
administered in substantial compliance with such laws and regulations to the
extent necessary to cause each Plan to satisfy applicable qualification
requirements, (c) have not engaged in a nonexempt prohibited transaction
described in Section 4975 of the Code or Section 406 of ERISA affecting any of
the Plans or the trusts created thereunder which could subject any such Plan or
trust to a material tax or penalty on prohibited transactions imposed under
Internal Revenue Code Section 4975 or ERISA, (d) have not incurred any
accumulated funding deficiency with respect to any Pension Plan, whether or not
waived, or any other liability to the PBGC which remains outstanding other than
the payment of premiums and there are no premium payments which are due and
unpaid, (e) failed to make a required installment or other required payment
under Section 412 of the Code, Section 302 of ERISA or the terms of such
Pension Plan, and (f) have not incurred, and are not reasonably expected to
incur, any material liability as a result of completely or partially
withdrawing from any Multiemployer Plan, or as a result of the reorganization
or termination of any such Multiemployer Plan.


 


5.12        Investment Company Act.
The Borrower is not an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.


 


ARTICLE VI.

AFFIRMATIVE COVENANTS


 


So long as any
Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding:


 


43

















 


6.01        Financial Statements. The
Borrower shall furnish to the Administrative Agent with sufficient copies to
distribute to each Lender:


 


(a)           within 120 days after
the end of each fiscal year of the Borrower, a consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as at the end of such fiscal
year and consolidated statements of income and stockholders’ equity, together
with a Consolidated Statement of cash flows, setting forth in each case in
comparative form the corresponding figures for the preceding fiscal year, all
prepared in accordance with generally accepted accounting principles, such
Consolidated Statements to be accompanied by the opinion (which opinion shall not
contain any qualifications or exceptions not acceptable to the Required
Lenders) thereon of Deloitte & Touche LLP, or other independent certified
public accountants of recognized national standing selected by the Borrower; provided, however,
that the requirements of this subparagraph may be satisfied by the delivery,
within the period hereinabove provided, of a copy of the Borrower’s Annual
Report on Form 10-K as filed with the SEC;


 


(b)           within 60 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, a copy of Form 10-Q as filed by the Borrower with the Securities and
Exchange Commission;


 


(c)           from time to time, with
reasonable promptness, such further information regarding the business affairs
and financial condition of the Borrower and its Consolidated Subsidiaries as
any Lender through the Administrative Agent may reasonably require including,
without limitation, a list of the Borrower’s Subsidiaries and Significant
Subsidiaries;


 


(d)           promptly after filing,
copies of all regular and periodic reports which the Borrower shall have filed
with the SEC, or any governmental agency substituted therefor, or with any
national securities exchange;


 


(e)           promptly after the same
shall have been sent to its shareholders generally, copies of all financial
statements, reports and proxy statements which the Borrower shall have sent to
its shareholders generally;


 


(f)            promptly of any
announcement by Moody’s or S&P of any change or possible change in a Debt
Rating; and


 


(g)           during any and all
times that a Responsible Officer is not required by any Law or Governmental
Authority to certify the statements to be submitted pursuant to each of clauses
(a) and (b) above, on which certifications the Lenders may rely, a
certificate signed by a Responsible Officer stating that the Consolidated
Statements accompanying such certificate fairly present in all material
respects the consolidated financial condition of the Borrower and its
Consolidated Subsidiaries at the end of such year or quarter and results of
operations of the Borrower and its Consolidated Subsidiaries for such year or
quarter, as the case may be, all in conformity with GAAP (except that such
certificate with respect to the financial statements required to be submitted
under clause (b) above may refer to the absence of complete notes
thereto required for such statements to present fairly the financial condition
and results of the operations of the Borrower in accordance with generally
accepted accounting principles). The Consolidated Statements to be furnished
pursuant to each of clauses (a) and (b) above shall be
accompanied by a Compliance Certificate of a Responsible Officer (i) certifying
that to the best knowledge of such Responsible Officer after due inquiry in
connection with such consolidated financial statements no Default or Event of
Default was discovered to have occurred and be


 


44

















 


continuing, or, if such a
Default or Event of Default was so discovered, stating the nature thereof and
(ii) setting forth computations showing, in detail satisfactory to the Lenders,
whether or not the Borrower was at the date of such Consolidated Statements in
compliance with the provisions of Article VII hereof.


 


Documents required
to be delivered pursuant to this Section 6.01 may be delivered
electronically and if so delivered, shall be deemed to have been delivered on
the date (i) on which the Borrower posts such documents, or provides a link
thereto on the Borrower’s website on the Internet at the website address listed
on Schedule 10.02; or (ii) on which such documents are posted on the
Borrower’s behalf on an Internet or intranet website, if any, to which each
Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); provided
that: (x) the Borrower shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given
by the Administrative Agent or such Lender and (y) the Borrower shall notify
(which may be by facsimile or electronic mail) the Administrative Agent and
each Lender of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.01(g) to the
Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.


 


6.02        Taxes and Claims. The Borrower shall pay and discharge, and
cause each of its Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits,
or upon any property belonging to it, prior to the date on which penalties attach
thereto, and all lawful claims which, if unpaid, might become a lien or charge
upon the property of the Borrower or such Subsidiary; provided that neither the
Borrower nor any such Subsidiary shall be required by this subsection to pay
any such tax, assessment, charge, levy or claim (a) the payment of which is
being contested in good faith and by proper proceedings and, if required by
generally accepted accounting principles, the Borrower shall have set aside
adequate reserves therefor, or (b) if the non-payment of such tax, assessment,
charge, levy or claim could reasonably be expected to have a Material Adverse
Effect.


 


6.03        Insurance. The Borrower shall maintain, and cause each of its
Subsidiaries to maintain, insurance coverage by responsible companies in such
amounts and against such risks as are customary and are judged by the Borrower
to be necessary or desirable.


 


6.04        Maintenance of Existence; Conduct of Business. Subject to Sections
6.11 and 7.02, the Borrower shall, and shall cause each of its Subsidiaries
to, preserve and maintain its corporate existence and all of its rights,
privileges and franchises necessary in the normal conduct of its business; provided
that nothing in this subsection shall prevent the termination, abandonment or
disposition of a line of business, right, privilege or franchise of the
Borrower or a Subsidiary or the business or corporate existence of a Subsidiary
that in the judgment of the


 


45

















 


Borrower or its Board of
Directors is no longer necessary in the normal conduct of business of the
Borrower.


 


6.05        Maintenance of Properties. The Borrower shall keep, and cause
each of its Significant Subsidiaries to keep, in good working order and
condition, ordinary wear and tear excepted, all of its material properties
necessary in its business, except where the failure to so maintain such
properties could not reasonably be expected to have a Material Adverse Effect; provided, however,
that nothing in this Section 6.05 shall prevent the Borrower or any
Subsidiary from discontinuing the operation and maintenance of any such
property if such property is, in the judgment of the Borrower or its Board of
Directors, no longer necessary for the normal conduct of the business of the
Borrower.


 


6.06        Access to Books and Inspection. The Borrower shall, upon
reasonable written notice from the Administrative Agent, give any
representative of any of the Lenders access during normal business hours to,
and permit such representatives to, examine any and all books, records, and
documents, and to inspect any of the properties of the Borrower and its
Subsidiaries; provided, that such inspection or examination relates to
matters pertaining to this Agreement. Any non-public information received by a
Lender under this Section 6.06 or otherwise in connection herewith shall
be received in confidence and shall not be used (except to monitor this
Agreement or to evaluate the extension of credit to the Borrower represented
hereby) or disclosed to any Person (other than personnel within such Lender’s
organization on a need to know basis, who shall be bound by the terms hereof)
without consent, except


 


(i)            to another Lender for
the purposes set forth in this Section 6.06;


 


(ii)           to a prospective
assignee or a prospective participant of such Lender; provided, that
such prospective assignee or participant shall have agreed with the Borrower in
writing reasonably satisfactory to the Borrower to be bound by the provisions
of this Section 6.06; and provided, further, that prior to
the first disclosure of such information to any prospective assignee or
participant, the Borrower shall have given its written consent to such
disclosure;


 


(iii)          in a judicial or other
legal action involving such Lender and arising out of or in connection with
this Agreement; provided, that such Lender shall notify the Borrower prior to
the disclosure and make a good faith effort to obtain a protective order
limiting further disclosure of such information; or


 


(iv)          when such information is
requested by any regulatory or governmental body to whose jurisdiction such
Lender is subject, or where, in such Lender’s good faith opinion, such
disclosure is otherwise required by law, regulation or order of governmental
authority.


 


Any visitation or
inspection shall be at the sole expense of the Lender, unless an Event of
Default or a Default shall have occurred and be continuing, in which case any
such visitation or inspection shall be at the sole expense of Borrower.


 


46

















 


6.07        Compliance with Applicable Laws. The Borrower shall comply,
and cause each of its Subsidiaries to comply, with the requirements of all
applicable laws, rules, regulations and orders of any governmental authority, a
breach of which could reasonably be expected to have a Material Adverse Effect,
except where contested in good faith and by proper proceedings.


 


6.08        Litigation. The Borrower shall promptly give to the
Administrative Agent notice in writing of all litigation and of all proceedings
before any governmental or regulatory agencies affecting the Borrower or any of
its Subsidiaries, except litigation or proceedings which, if adversely
determined, could not reasonably be expected to have a Material Adverse Effect
or are libel proceedings where adverse determinations are unlikely.


 


6.09        ERISA. The Borrower shall, and shall cause each of its ERISA
Affiliates to, comply in all material respects with the applicable provisions
of ERISA and any other federal or state law including the qualification
requirements of Subchapters D and F of Chapter 1 of Subtitle A of the Code that
are, in the judgment of the Borrower, applicable to each of its Plans; and as
soon as practicable after the Borrower knows that any Plan Event with respect
to any Plan or Multiemployer Plan of the Borrower or any such ERISA Affiliate
has occurred, the Borrower shall furnish to the Agent and to each Lender a
statement signed by a Responsible Officer setting forth details as to such Plan
Event and the action, if any, that the Borrower or respective ERISA Affiliate
proposes to take with respect thereto, together with a copy of any notices or
other documents filed with, or received from, any government agency with
respect to such Plan Event; provided that such Plan Event could reasonably
be expected to result in a Material Adverse Effect.


 


6.10        Notice. The Borrower shall promptly furnish to the
Administrative Agent and each Lender:


 


(a)           of the occurrence of
any Default, together with a statement by a Responsible Officer describing the
action, if any, that the Borrower proposes to take with respect thereto; or


 


(b)           of any matter that has
resulted or could reasonably be expected to result in a Material Adverse
Effect.


 


Each notice pursuant to
this Section shall be accompanied by a statement of a Responsible Officer of
the Borrower setting forth details of the occurrence referred to therein and
stating what action the Borrower has taken and proposes to take with respect
thereto. Each notice pursuant to Section 6.10(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan
Document that have been breached.


 


6.11        Change in Business. The Borrower shall continue to be engaged
significantly in the communications business and business related thereto.


 


6.12        Change of Control. If any Person (or two or more Persons
acting in concert), other than a Family Member or a beneficiary or trustee (as
the same may change from time to time) of a Family Trust, shall have acquired
the power to elect a majority of the directors of the Borrower (a “Change of
Control”), then within five Business Days after any Responsible Officer
becomes aware of such Change of Control, the Borrower shall notify in writing
each Lender and the Administrative Agent of such Change of Control (the “Change
of Control Notice”), whereupon the request of the Required Lenders, which
request shall be made within 15 days after the date of such Change of Control
Notice, the parties hereto shall have 120 days after the


 


47

















 


date of such Change of
Control Notice, which period may be extended if the Borrower and the Required
Lenders so agree (such period, as it may be extended, being the “Negotiation
Period”), to renegotiate the terms and conditions of this Agreement and
enter into an amendment hereto or one or more other agreements, to reflect such
renegotiated terms and conditions (such amendment or one or more other
agreements being the “New Agreement”). For purposes hereof, the term “Family
Member” means any descendant (or any spouse thereof) of Iphigene Ochs
Sulzberger, and “Family Trust” means any trust over 50% of the
individual beneficiaries of which are Family Members.


 


6.13        Dividends, Etc. The
Borrower may (a) declare and make any dividend payment or other distribution
payable in common stock of the Borrower, (b) purchase, redeem or otherwise
acquire shares of its capital stock or warrants, rights or options to acquire
any such shares with the proceeds received from the substantially concurrent
issue of new shares of its capital stock and (c) declare and pay cash dividends
to its stockholders and purchase, redeem or otherwise acquire shares of its
capital stock or warrants, rights or options to acquire any such shares for
cash, but only if, immediately after giving effect to such proposed action, no
Default or Event of Default would exist.


 


ARTICLE VII.

NEGATIVE COVENANTS


 


So long as any
Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, the Borrower shall not, nor shall it permit any Significant
Subsidiary to, directly or indirectly:


 


7.01        Limitation on Liens and Guarantees. (a) Create or suffer to
exist any lien, security interest or other charge or encumbrance, or any other
type of preferential arrangement, upon or with respect to any of its
properties, whether now owned or hereafter acquired, or assign, or permit any
of its Significant Subsidiaries to assign, any right to receive income (collectively,
“Liens”) other than Permitted Liens, and (b) except for Indebtedness or
other obligations of the Borrower or any of its Consolidated Subsidiaries or
immaterial obligations of the inactive corporations listed on Schedule 5.10
incidental to their dissolution, (i) guarantee, directly or indirectly, any
Indebtedness or other obligations, or (ii) contract to purchase of otherwise
acquire, or otherwise assure a creditor against loss in respect of any
Indebtedness or other obligations (the items in clauses (i) and (ii)
being collectively referred to as “Guarantees”) other than Permitted
Guaranties; provided that the Borrower or any of its Significant
Subsidiaries may create or suffer to exist any Liens or Guarantees otherwise
prohibited in clauses (i) and (ii) above so long as the aggregate
principal amount of indebtedness and obligations secured thereby and guaranteed
thereby by the Borrower and its Significant Subsidiaries shall not exceed 25%
of Stockholders’ Equity.


 


48

















 


7.02        Disposition of Assets, Consolidation or Merger. The Borrower
will not, and will not permit any Significant Subsidiary or any Subsidiary that
owns The New York Times to, sell, lease, transfer or otherwise dispose
of all or substantially all of its property and assets or The New York Times
to any Person other than the Borrower or a Consolidated Subsidiary, or
consolidate with or merge into any other corporation, or permit any other
corporation except a Consolidated Subsidiary to merge into the Borrower or a
Consolidated Subsidiary, unless (a) immediately prior to, as well as
immediately after and giving effect to, the transaction, there shall exist no
Default or Event of Default under this Agreement or under the Notes; and (b) in
the case of a consolidation or merger or the disposition of all or
substantially all of the property or assets of the Borrower or The New York
Times, the corporation (if other than the Borrower) formed by or resulting
from any such consolidation or merger or the Person which shall have received
the transfer (by sale, lease or otherwise) of such property and assets or The
New York Times shall be a Successor Corporation and such Successor
Corporation shall have expressly assumed all of the liabilities and obligations
of the Borrower under this Agreement and under the Notes by a legally effective
instrument in writing reasonably satisfactory to the Lenders and delivered to
each Lender.


 


7.03        Minimum Stockholders’ Equity. The Borrower shall not permit
Stockholders’ Equity at the end of each fiscal quarter to be less than the sum
of (a) $950,000,000 plus (b) an amount equal to 25% of Net Income for
each fiscal year of the Borrower ending after December 28, 2003 but prior to
the date of determination, in each case, for which Net Income is positive (but
with no deduction on account of negative Net Income for any fiscal year of the
Borrower).


 


ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES


 


8.01        Events of Default. Any
of the following shall constitute an Event of Default:


 


(a)           The Borrower shall
default in the payment when due of any principal of any Borrowing or any L/C
Obligation to any Lender hereunder (and, provided that the Borrower shall
deliver to such Lender on such due date a copy of the written instructions
given by the Borrower to any commercial bank in New York City irrevocably
instructing such commercial bank to make payment on such date in immediately
available funds of the full amount of principal owing to such Lender on such
date, such default shall continue for a period exceeding two days) or shall
default for a period exceeding five Business Days in the payment when due of
any interest on any Borrowing or on any L/C Obligation or of any other amount
payable to the Administrative Agent or any Lender hereunder; or


 


(b)           Any representation or
warranty made by the Borrower herein or in any writing or certificate furnished
by or on behalf of the Borrower under this Agreement (including, but not
limited to, any Committed Loan Notice) shall prove to have been incorrect in
any material respect when made; or


 


(c)           The Borrower shall
default in the performance of any agreement in Sections 6.10(a), 6.11
or 6.13 or in Article VII; provided that, in the case of Section
7.01, an Event of Default shall exist only if (i) all indebtedness secured
by Liens prohibited by Section 7.01(a) and (ii) all guaranteed
obligations prohibited by Section 7.01(b) exceed $50,000,000 for a
period of ten days; or


 


(d)           The Borrower shall
default in the performance of any other agreement herein which shall remain
unremedied for 30 days after written notice specifying such nonperformance


 


49

















 


and requesting that the
same be remedied shall have been given to the Borrower by the Required Lenders;
or


 


(e)           A final judgment for
the payment of money in excess of $50,000,000 shall be rendered against any
Corporation other than Northern SC Paper Corporation, and the same shall have
remained unsatisfied and in effect, and there shall be any period of 60
consecutive days during which a stay of enforcement of such judgment, by reason
of a pending appeal or otherwise, shall not be in effect; or


 


(f)            (i)            The Borrower or any Significant Subsidiary
other than Northern SC Paper Corporation shall fail to pay when due (A) after
any applicable period of grace, any payments of principal or (B) within ten
Business Days after any applicable period of grace, any payments of interest on
any Debt the aggregate outstanding principal amount of which is equal to, or
greater than $50,000,000; or


 


(ii)           Any Indebtedness of the
Borrower or any Significant Subsidiary other than Northern SC Paper Corporation
shall become due before stated maturity by the acceleration of the maturity
thereof and the aggregate amount in respect of such Indebtedness so due from
such Corporation other than Northern SC Paper Corporation exceeds at any one
time $50,000,000; or


 


(g)           The Borrower or any
Consolidated Subsidiary which, as of the date of any action referred to in any
of clauses (i) through (viii) below with respect to such
Consolidated Subsidiary, constitutes a Significant Subsidiary, excluding
Northern SC Paper Corporation, shall


 


(i)            apply for or consent
to the appointment of, or the taking of possession by, a receiver, custodian,
trustee, or liquidator of itself or of all or a substantial part of its
property,


 


(ii)           admit in writing its
inability, or be generally unable, to pay its debts as they become due,


 


(iii)          make a general
assignment for the benefit of creditors,


 


(iv)          commence a voluntary
case under the federal bankruptcy laws (as now or hereafter in effect),


 


(v)           be adjudicated a
bankrupt or insolvent,


 


(vi)          file a petition seeking
to take advantage of any other laws relating to bankruptcy, insolvency,
reorganization, winding up or composition or adjustment of debts,


 


(vii)         acquiesce in writing to,
or fail to controvert in a timely and appropriate manner, any petition filed
against it in an involuntary case under the aforesaid federal bankruptcy laws,
or


 


50

















 


(viii)        take any corporate action
for the purpose of effecting any of the foregoing; or


 


(h)           A case or other
proceeding shall be commenced, without the application or consent of the
Borrower or any Consolidated Subsidiary that, as of the date any such case or
proceeding shall be commenced with respect to such Consolidated Subsidiary,
constitutes a Significant Subsidiary, excluding Northern SC Paper Corporation,
in any court of competent jurisdiction, seeking


 


(i)            the liquidation,
reorganization, dissolution, winding up, or composition or readjustment of
debts, of the Borrower or such Consolidated Subsidiary,


 


(ii)           the appointment of a
trustee, receiver, custodian, liquidator or the like of the Borrower or such
Consolidated Subsidiary or of all or any substantial part of its assets, or


 


(iii)          any similar action with
respect to the Borrower or such Consolidated Subsidiary under any laws relating
to bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, and, in any of the foregoing instances, such case or
proceeding shall continue undismissed, or an order, judgment or decree
approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect, for a period of 60 consecutive days, or an order for
relief in respect of the Borrower or such Consolidated Subsidiary shall be
entered in an involuntary case under the federal bankruptcy laws (as now or
hereafter in effect);


 


(i)            Any Termination Event
shall have occurred, except a Termination Event that (i) does not involve any
liability or liabilities of the Borrower and its ERISA Affiliates in excess of
$50,000,000 in the aggregate, or (ii) in the reasonable opinion of the Required
Lenders, will not have a Material Adverse Effect; or


 


(j)            The parties hereto
shall have failed to enter into a New Agreement before the end of the
Negotiation Period and 30 days shall have elapsed from the end of such
Negotiation Period.


 


8.02        Remedies Upon Event of
Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the
Required Lenders, take any or all of the following actions:


 


(a)           declare the commitment
of each Lender to make Loans and any obligation of the L/C Issuer to make L/C
Credit Extensions to be terminated, whereupon such commitments and obligation
shall be terminated;


 


(b)           declare the unpaid
principal amount of all outstanding Loans, all interest accrued and unpaid
thereon, and all other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived
by the Borrower;


 


51

















 


(c)           require that the
Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then
Outstanding Amount thereof); and


 


(d)           exercise on behalf of
itself and the Lenders all rights and remedies available to it and the Lenders
under the Loan Documents or applicable law;


 


provided, however, that upon the occurrence of an actual
or deemed entry of an order for relief with respect to the Borrower under the
Bankruptcy Code of the United States, the obligation of each Lender to make
Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become due
and payable, and the obligation of the Borrower to Cash Collateralize the L/C
Obligations as aforesaid shall automatically become effective, in each case
without further act of the Administrative Agent or any Lender.


 


8.03        Application of Funds. After
the exercise of remedies provided for in Section 8.02 (or after the
Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 8.02), any amounts received on account
of the Obligations shall be applied by the Administrative Agent in the
following order:


 


First,
to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including Attorney Costs and amounts payable under Article
III) payable to the Administrative Agent in its capacity as such;


 


Second,
to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders
(including Attorney Costs and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;


 


Third,
to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and L/C Borrowings, ratably among the Lenders in
proportion to the respective amounts described in this clause Third
payable to them;


 


Fourth,
to payment of that portion of the Obligations constituting unpaid principal of
the Loans and L/C Borrowings, ratably among the Lenders in proportion to the
respective amounts described in this clause Fourth held by them;


 


Fifth,
to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit to the extent that it has not already been
Cash Collateralized pursuant to any of the other provisions of this Agreement;
and


 


Last,
the balance, if any, after all of the Obligations have been indefeasibly paid
in full, to the Borrower or as otherwise required by Law.


 


Subject to Section
2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of
Letters of Credit pursuant to clause Fifth above shall be applied to
satisfy drawings under such


 


52

















 


Letters of
Credit as they occur. If any amount remains on deposit as Cash Collateral after
all Letters of Credit have either been fully drawn or expired, such remaining
amount shall be applied to the other Obligations, if any, in the order set forth
above.


 


ARTICLE IX.

ADMINISTRATIVE AGENT


 


9.01        Appointment and
Authorization of Administrative Agent.


 


(a)           Each Lender hereby
irrevocably appoints, designates and authorizes the Administrative Agent to
take such action on its behalf under the provisions of this Agreement and each
other Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere herein or in any other Loan
Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term “agent” herein and in the other Loan Documents
with reference to the Administrative Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable Law. Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.


 


(b)           The L/C Issuer shall
act on behalf of the Lenders with respect to any Letters of Credit issued by it
and the documents associated therewith, and the L/C Issuer shall have all of
the benefits and immunities (i) provided to the Administrative Agent in this Article
IX with respect to any acts taken or omissions suffered by the L/C Issuer
in connection with Letters of Credit issued by it or proposed to be issued by
it and the applications and agreements for letters of credit pertaining to such
Letters of Credit as fully as if the term “Administrative Agent” as used in
this Article IX and in the definition of “Agent-Related Person” included
the L/C Issuer with respect to such acts or omissions, and (ii) as additionally
provided herein with respect to the L/C Issuer.


 


9.02        Delegation of Duties. The
Administrative Agent may execute any of its duties under this Agreement or any
other Loan Document by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.


 


9.03        Liability of
Administrative Agent. No Agent-Related Person shall (a) be liable for any
action taken or omitted to be taken by any of them under or in connection with
this Agreement or any other Loan Document or the transactions contemplated
hereby (except for its own gross negligence or willful misconduct in connection
with its duties expressly set forth


 


53

















 


herein), or (b) be
responsible in any manner to any Lender or participant for any recital, statement,
representation or warranty made by the Borrower or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
the Borrower or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any obligation
to any Lender or participant to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Borrower or any Affiliate thereof.


 


9.04        Reliance by Administrative
Agent.


 


(a)           The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any writing, communication, signature, resolution, representation, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, electronic mail message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to the Borrower), independent accountants and other
experts selected by the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under any Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Lenders (or such greater number of Lenders as may be expressly required hereby
in any instance) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.


 


(b)           For purposes of
determining compliance with the conditions specified in Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received notice
from such Lender prior to the proposed Closing Date specifying its objection
thereto.


 


9.05        Notice of Default. The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Administrative Agent
for the account of the Lenders, unless the Administrative Agent shall have
received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default and stating that such notice is a “notice of
default”. The Administrative Agent will notify the Lenders of its receipt of
any such notice. The Administrative Agent shall take such action with respect
to such Default as may be directed by the Required Lenders in accordance with Article
VIII; provided, however, that unless and until the Administrative Agent has received
any such direction, the


 


54

















 


Administrative Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default as it shall deem advisable or in the best
interest of the Lenders.


 


9.06        Credit Decision;
Disclosure of Information by Administrative Agent. Each Lender acknowledges
that no Agent-Related Person has made any representation or warranty to it, and
that no act by the Administrative Agent hereafter taken, including any consent
to and acceptance of any assignment or review of the affairs of the Borrower or
any Affiliate thereof, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Lender as to any matter, including
whether Agent-Related Persons have disclosed material information in their
possession. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower
and its respective Subsidiaries, and all applicable bank or other regulatory
Laws relating to the transactions contemplated hereby, and made its own
decision to enter into this Agreement and to extend credit to the Borrower
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent herein, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Borrower or any of its
respective Affiliates that may come into the possession of any Agent-Related
Person.


 


9.07        Indemnification of
Administrative Agent. Whether or not the transactions contemplated hereby
are consummated, the Lenders shall indemnify upon demand each Agent-Related
Person (to the extent not reimbursed by or on behalf of the Borrower and
without limiting the obligation of the Borrower to do so), pro rata, and hold
harmless each Agent-Related Person from and against any and all Indemnified
Liabilities incurred by it; provided, however, that (a) no Lender shall be liable
for the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a
court of competent jurisdiction to have resulted from such Agent-Related Person’s
own gross negligence or willful misconduct; provided,
however, that no action taken in accordance
with the directions of the Required Lenders (or all of the Lenders if
applicable) shall be deemed to constitute gross negligence or willful misconduct
for purposes of this Section, and (b) no Lender shall be liable for the payment
of any portion of an Indemnified Liability pursuant to this Section unless such
Indemnified Liability was incurred by the Administrative Agent, Swingline
Lender or L/C Issuer in their respective capacity as such or by an
Agent-Related Person acting for the Administrative Agent, Swingline Lender or
L/C Issuer in such capacity. Without limitation of the foregoing, each Lender
shall reimburse the Administrative Agent upon demand for its ratable share of
any costs or out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration,


 


55
















 


modification, amendment
or enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, this
Agreement, any other Loan Document, or any document contemplated by or referred
to herein, to the extent that the Administrative Agent is not reimbursed for
such expenses by or on behalf of the Borrower. The undertaking in this Section
shall survive termination of the Aggregate Commitments, the payment of all
other Obligations and the resignation of the Administrative Agent.


 


9.08        Administrative Agent in
its Individual Capacity. Bank of America and its Affiliates may make loans
to, issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with each of the Borrower
and its respective Affiliates as though Bank of America were not the
Administrative Agent or the L/C Issuer hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, Bank of America or its Affiliates may receive information regarding
the Borrower or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Borrower or such Affiliate) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Bank of America
shall have the same rights and powers under this Agreement as any other Lender
and may exercise such rights and powers as though it were not the
Administrative Agent or the L/C Issuer, and the terms “Lender” and “Lenders”
include Bank of America in its individual capacity.


 


9.09        Successor Administrative
Agent. The Administrative Agent may resign as Administrative Agent upon 30
days’ notice to the Lenders; provided
that any such resignation by Bank of America shall also constitute its
resignation as L/C Issuer and Swing Line Lender. If the Administrative
Agent resigns under this Agreement, the Required Lenders shall appoint from
among the Lenders a successor administrative agent for the Lenders, which
successor administrative agent shall be consented to by the Borrower at all
times other than during the existence of an Event of Default (which consent of
the Borrower shall not be unreasonably withheld or delayed). If no successor
administrative agent is appointed prior to the effective date of the
resignation of the Administrative Agent, the Administrative Agent may appoint,
after consulting with the Lenders and the Borrower, a successor administrative
agent from among the Lenders. Upon the acceptance of its appointment as
successor administrative agent hereunder, the Person acting as such successor
administrative agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent, L/C
Issuer and Swing Line Lender and the respective terms “Administrative Agent”, “L/C
Issuer” and “Swing Line Lender” shall mean such successor administrative agent,
Letter of Credit issuer and swing line lender, and the retiring Administrative
Agent’s appointment, powers and duties as Administrative Agent shall be
terminated and the retiring L/C Issuer’s and Swing Line Lender’s rights, powers
and duties as such shall be terminated, without any other or further act or
deed on the part of such retiring L/C Issuer or Swing Line Lender or any other
Lender, other than the obligation of the successor L/C Issuer to issue letters
of credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or to make other arrangements satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C
Issuer with respect to such Letters of Credit. After any retiring
Administrative Agent’s resignation hereunder as Administrative Agent, the
provisions of this Article IX and Sections 10.04 and 10.05
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative


 


56

















 


Agent by the date which
is 30 days following a retiring Administrative Agent’s notice of resignation, the
retiring Administrative Agent’s resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above.


 


9.10        Administrative Agent May
File Proofs of Claim. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Borrower, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise


 


(a)           to file and prove a
claim for the whole amount of the principal and interest owing and unpaid in
respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent
under Sections 2.03(i) and (j), 2.09 and 10.04)
allowed in such judicial proceeding; and


 


(b)           to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute the same;


 


and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to the Administrative Agent and, in the event that
the Administrative Agent shall consent to the making of such payments directly
to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.


 


Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative
Agent to vote in respect of the claim of any Lender in any such proceeding.


 


9.11        Other Agents; Arrangers and Managers. None of the Lenders or
other Persons identified on the facing page or signature pages of this
Agreement as a “syndication agent”, “documentation agent”, “co-agent”, “book
manager”, “lead manager”, “arranger”, “joint lead arranger” or “co-arranger”
shall have any right, power, obligation, liability, responsibility or duty
under this Agreement other than, in the case of such Lenders, those applicable
to all Lenders as such. Without limiting the foregoing, none of the Lenders or
other Persons so identified shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender 


 


57

















 


acknowledges that it has
not relied, and will not rely, on any of the Lenders or other Persons so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.


 


ARTICLE X.

MISCELLANEOUS


 


10.01      Amendments, Etc. No amendment
or waiver of any provision of this Agreement or any other Loan Document, and no
consent to any departure by the Borrower therefrom, shall be effective unless
in writing signed by the Required Lenders and the Borrower, and acknowledged by
the Administrative Agent, and each such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given; provided, however,
that no such amendment, waiver or consent shall:


 


(a)           waive any condition set
forth in Section 4.01(a) without the written consent of each Lender;


 


(b)           extend or increase the
Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section
8.02) without the written consent of such Lender;


 


(c)           postpone any date fixed
by this Agreement or any other Loan Document for any payment or mandatory prepayment of principal,
interest, fees or other amounts due to the Lenders (or any of them) or any scheduled or mandatory reduction of
the Aggregate Commitments hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby;


 


(d)           reduce the principal
of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or
(subject to clause (v)  of the second
proviso to this Section 10.01) any fees or other amounts payable
hereunder or under any other Loan Document  without the
written consent of each Lender directly affected thereby; provided, however, that only the
consent of the Required Lenders shall be necessary (i) to amend the definition of
“Default Rate” or to waive any obligation of the Borrower to pay interest or
Letter of Credit Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term
used therein) even if the effect of such amendment would be to reduce the rate
of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder;


 


(e)           change Section 2.13
or Section 8.03 in a manner that would alter the pro rata sharing of
payments required thereby without the written consent of each Lender; or


 


(f)            change any provision
of this Section or the definition of “Required Lenders” or any other provision
hereof specifying the number or percentage of Lenders required to amend, waive
or otherwise modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender;


 


and, provided
further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any
Letter of Credit Application relating to any Letter of Credit issued or to be
issued by it; (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Swing Line Lender in addition to the Lenders required above,
affect the rights


 


58

















 


or duties of
the Swing Line Lender under this Agreement; (iii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; (iv) Section 10.07(h) may not be amended, waived or otherwise
modified without the consent of each Granting Lender all or any part of whose
Loans are being funded by an SPC at the time of such amendment, waiver or other
modification; and (v) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall
have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender.


 


10.02      Notices and Other
Communications; Facsimile Copies.


 


(a)           General. Unless
otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including by facsimile transmission).
All such written notices shall be mailed certified or registered mail, faxed or
delivered to the applicable address with written acknowledgement of receipt,
facsimile number or (subject to subsection (b) below) electronic mail
address, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:


 


(i)            if to the Borrower,
the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the
address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 10.02 or to such other address,
facsimile number, electronic mail address or telephone number as shall be
designated by such party in a notice to the other parties; and


 


(ii)           if to any other Lender,
to the address, facsimile number, electronic mail address or telephone number
specified in its Administrative Questionnaire or to such other address,
facsimile number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Borrower, the Administrative Agent,
the L/C Issuer and the Swing Line Lender.


 


Notices sent
by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
facsimile shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below shall be effective as provided in such subsection
(b).


 


(b)           Electronic
Communications. Notices and other communications to the Lenders hereunder
may be delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to
notices to any Lender pursuant to Article II if such Lender has notified
the Administrative Agent that it is incapable of receiving notices under such Article
by electronic communication. The Administrative Agent or the Borrower may, in
its


 


59

















 


discretion,
agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of
such procedures may be limited to particular notices or communications.


 


(c)           Effectiveness
of Facsimile Documents and Signatures. Loan Documents may be transmitted
and/or signed by facsimile. The effectiveness of any such documents and
signatures shall, subject to applicable Law, have the same force and effect as
manually-signed originals and shall be binding on the Borrower, the
Administrative Agent and the Lenders. The Administrative Agent may also require
that any such documents and signatures be confirmed by a manually-signed
original thereof; provided, however, that the failure to request or
deliver the same shall not limit the effectiveness of any facsimile document or
signature.


 


(d)           Reliance by
Administrative Agent and Lenders. The Administrative Agent and the Lenders
shall be entitled to rely and act upon any notices (including telephonic
Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on
behalf of the Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood by
the recipient, varied from any confirmation thereof. The Borrower shall
indemnify each Agent-Related Person and each Lender from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrower. All telephonic
notices to and other communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.


 


10.03      No Waiver; Cumulative
Remedies. No failure by any Lender or the Administrative Agent to exercise,
and no delay by any such Person in exercising, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.


 


10.04      Attorney Costs, Expenses and
Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all costs and expenses incurred
in connection with the development, preparation, negotiation and execution of
this Agreement and the other Loan Documents and any amendment, waiver, consent
or other modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (b) to pay or reimburse the
Administrative Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any “workout” or restructuring in
respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all Attorney Costs. The
foregoing costs and expenses shall include all search, filing,
recording, title insurance and appraisal charges and fees and taxes related
thereto, and other out-of-pocket expenses incurred by the Administrative Agent
and the cost of independent public accountants and other outside experts
retained by the


 


60

















 


Administrative Agent or
any Lender. All amounts due under this Section 10.04 shall be payable
within ten Business Days after demand therefor. The agreements in this Section
shall survive the termination of the Aggregate Commitments and repayment of all
other Obligations.


 


10.05      Indemnification
by the Borrower. Whether or
not the transactions contemplated hereby are consummated, the Borrower shall
indemnify and hold harmless each Agent-Related Person, each Lender and their
respective Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the “Indemnitees”) from and against any
and all liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time be
imposed on, incurred by or asserted against any such Indemnitee in any way
relating to or arising out of or in connection with (a) the execution,
delivery, enforcement, performance or administration of any Loan Document or
any other agreement, letter or instrument delivered in connection with the
transactions contemplated thereby or the consummation of the transactions
contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use
or proposed use of the proceeds therefrom (including any refusal by the L/C
Issuer to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (c) any actual or alleged release by the Borrower or
any Subsidiary of Hazardous Materials on or from any property currently or
formerly owned or operated by the Borrower or any Subsidiary, or any
Environmental Liability caused by any act or omission of the Borrower or any
Subsidiary, or (d) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory (including any investigation of, preparation for, or
defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all
the foregoing, collectively, the “Indemnified Liabilities”), in all
cases, whether or not caused by or arising, in whole or in part, out of the
negligence of the Indemnitee; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses or disbursements are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee. No Indemnitee shall
be liable for any damages arising from the use by others of any information or
other materials obtained through IntraLinks or other similar information
transmission systems in connection with this Agreement, nor shall any
Indemnitee have any liability for any punitive, special, indirect or
consequential damages relating to this Agreement or any other Loan Document or
arising out of its activities in connection herewith or therewith (whether
before or after the Closing Date). All amounts due under this Section 10.05
shall be payable within ten Business Days after demand therefor. The agreements
in this Section shall survive the resignation of the Administrative Agent, the
replacement of any Lender, the termination of the Aggregate Commitments and the
repayment, satisfaction or discharge of all the other Obligations.


 


10.06      Payments Set Aside. To
the extent that any payment by or on behalf of the Borrower is made to the
Administrative Agent or any Lender, or the Administrative Agent or any Lender
exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in


 


61

















 


its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its applicable
share of any amount so recovered from or repaid by the Administrative Agent,
plus interest thereon from the date of such demand to the date such payment is
made at a rate per annum equal to the Federal Funds Rate from time to time in
effect.


 


10.07      Successors and Assigns.


 


(a)           The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except
(i) to an Eligible Assignee in accordance with the provisions of subsection
(b) of this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section, or (iv) to an SPC in accordance with the
provisions of subsection (h) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void). Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d)
of this Section and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by reason
of this Agreement.


 


(b)           Any Lender may at any
time assign to one or more Eligible Assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to
it); provided that (i) except in the case of an assignment of the entire
remaining amount of the assigning Lender’s Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund (as defined in subsection (g) of this
Section) with respect to a Lender, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) subject to each
such assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date,
shall not be less than $5,000,000 unless each of the Administrative Agent and,
so long as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or
delayed); (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under
this Agreement with respect to the Loans or the Commitment assigned, except
that this clause (ii) shall not apply to rights in respect of Swing Line
Loans; (iii) any assignment of a Commitment must be approved by the
Administrative Agent, the L/C Issuer and the Swing Line Lender unless the
Person that is the proposed assignee is itself a Lender, an Affiliate of a
Lender or an Approved Fund (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee); and (iv) the parties to each
assignment shall execute and deliver to the


 


62

















 


Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of
$3,500. Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective
date specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
3.01, 3.04, 3.05, 10.04 and 10.05 with respect
to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with subsection
(d) of this Section.


 


(c)           The Administrative
Agent, acting solely for this purpose as an agent of the Borrower, shall
maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amounts of the
Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower or any Lender, at any reasonable time and from time
to time upon reasonable prior notice. In addition, at any time that a request
for a consent for a material or other substantive change to the Loan Documents
is pending, any Lender wishing to consult with other Lenders in connection
therewith may request and receive from the Administrative Agent a copy of the
Register.


 


(d)           Any Lender may at any
time, without the consent of, or notice to, the Borrower or the Administrative
Agent, sell participations to any Person (other than a natural person or the
Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations and/or Swing Line
Loans) owing to it); provided that (i) such Lender’s obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, waiver or other modification described in the first proviso to Section
10.01 that directly affects such Participant. Subject to subsection (e)
of this Section, the Borrower agrees


 


63

















 


that each Participant
shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section
10.09 as though it were a Lender, provided such Participant agrees
to be subject to Section 2.13 as though it were a Lender.


 


(e)           A Participant shall not
be entitled to receive any greater payment under Section 3.01 or 3.04
than the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 3.01 unless the Borrower is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 10.15 as
though it were a Lender.


 


(f)            Any Lender may at any
time pledge or assign a security interest in all or any portion of its rights
under this Agreement (including under its Note, if any) to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall
release such Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto.


 


(g)           As used herein, the
following terms have the following meanings:


 


“Eligible
Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person), approved by (i)
in the case of clause (d) only, the Administrative Agent, the L/C Issuer
and the Swing Line Lender, and (ii) in the case of each of clauses (a)
through (d), unless an Event of Default has occurred and is continuing,
the Borrower (each such approval not to be unreasonably withheld or delayed); provided
that notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.


 


“Fund”
means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.


 


“Approved
Fund” means any Fund that is administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.


 


(h)           Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”)
may with the prior written consent of the Borrower grant to a special purpose
funding vehicle (such consent not to be unreasonably withheld or delayed; provided, however,
that the Borrower’s failure to consent to any grant to a special purpose
funding vehicle that results in increased costs under Article III herein
shall be deemed to be reasonable for purposes herein) identified as such in
writing from time to time by the Granting Lender to the Administrative Agent
and the Borrower (an “SPC”) the option to provide all or any part of any
Committed Loan that such Granting Lender would otherwise be obligated to make
pursuant to


 


64

















 


this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund any
Committed Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Committed Loan, the Granting
Lender shall be obligated to make such Committed Loan pursuant to the terms
hereof or, if it fails to do so, to make such payment to the Administrative
Agent as is required under Section 2.13(c)(ii). Each party hereto hereby
agrees that (i) neither the grant to any SPC nor the exercise by any SPC of
such option shall increase the costs or expenses or otherwise increase or
change the obligations of the Borrower under this Agreement (including its
obligations under Section 3.04), (ii) no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement for which a Lender
would be liable, and (iii) the Granting Lender shall for all purposes,
including the approval of any amendment, waiver or other modification of any
provision of any Loan Document, remain the lender of record hereunder. The
making of a Committed Loan by an SPC hereunder shall utilize the Commitment of
the Granting Lender to the same extent, and as if, such Committed Loan were
made by such Granting Lender. In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior debt of any
SPC, it will not institute against, or join any other Person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State thereof.
Notwithstanding anything to the contrary contained herein, any SPC may (i) with
notice to, but without prior consent of the Borrower and the Administrative
Agent and with the payment of a processing fee of $1,000, assign all or any
portion of its right to receive payment with respect to any Committed Loan to
the Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of Committed Loans to any rating agency,
commercial paper dealer or provider of any surety or Guarantee or credit or
liquidity enhancement to such SPC.


 


(i)            Notwithstanding
anything to the contrary contained herein, if at any time Bank of America
assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank
of America may, (i) upon 30 days’
notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to the Borrower,
resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the Borrower shall be entitled to appoint from among the
Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided, however,
that no failure by the Borrower to appoint any such successor shall affect the
resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case
may be. If Bank of America resigns as L/C Issuer, it shall retain all the
rights and obligations of the L/C Issuer hereunder with respect to all Letters
of Credit outstanding as of the effective date of its resignation as L/C Issuer
and all L/C Obligations with respect thereto (including the right to require
the Lenders to make Base Rate Committed Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America
resigns as Swing Line Lender, it shall retain all the rights of the Swing Line
Lender provided for hereunder with respect to Swing Line Loans made by it and
outstanding as of the effective date of such resignation, including the right
to require the Lenders to make Base Rate Committed Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c).


 


10.08      Confidentiality. Each of
the Administrative Agent and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates and to its Affiliates’ respective partners,
directors,


 


65

















 


officers, employees,
agents, advisors and representatives (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority (including any self-regulatory
authority purporting to have jurisdiction over it, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under or any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Documents or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (g) with the consent
of the Borrower, or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent or any Lender on a nonconfidential basis
from a source other than the Borrower. For the purposes of this Section, “Information”
means all information received from the Borrower or any Subsidiary relating to
the Borrower or any Subsidiary or any of their respective businesses, other
than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary, provided that, in the case of information received from the
Borrower or any Subsidiary after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


10.09      Set-off. In addition to
any rights and remedies of the Lenders provided by law, upon the occurrence and
during the continuance of any Event of Default, each Lender is authorized at
any time and from time to time, without prior notice to the Borrower, any such
notice being waived by the Borrower to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness at any time
owing by, such Lender to or for the credit or the account of the Borrower
against any and all Obligations owing to such Lender hereunder or under any
other Loan Document, now or hereafter existing, irrespective of whether or not
the Administrative Agent or such Lender shall have made demand under this
Agreement or any other Loan Document and although such Obligations may be
contingent or unmatured or denominated in a currency different from that of the
applicable deposit or indebtedness. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application.


 


10.10      Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan Document, the
interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum
Rate”). If the Administrative Agent or any Lender shall receive interest in
an amount that exceeds the Maximum Rate, the excess interest shall be applied
to the principal of the Loans or,


 


66

















 


if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.


 


10.11      Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.


 


10.12      Integration. This
Agreement, together with the other Loan Documents, comprises the complete and
integrated agreement of the parties on the subject matter hereof and thereof
and supersedes all prior agreements, written or oral, on such subject matter. In
the event of any conflict between the provisions of this Agreement and those of
any other Loan Document, the provisions of this Agreement shall control; provided
that the inclusion of supplemental rights or remedies in favor of the
Administrative Agent or the Lenders in any other Loan Document shall not be
deemed a conflict with this Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.


 


10.13      Survival of Representations
and Warranties. All representations and warranties made hereunder and in
any other Loan Document or other document delivered pursuant hereto or thereto
or in connection herewith or therewith shall survive the execution and delivery
hereof and thereof. Such representations and warranties have been or will be
relied upon by the Administrative Agent and each Lender, regardless of any
investigation made by the Administrative Agent or any Lender or on their behalf
and notwithstanding that the Administrative Agent or any Lender may have had
notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.


 


10.14      Severability. If any
provision of this Agreement or the other Loan Documents is held to be illegal,
invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not
be affected or impaired thereby and (b) the parties shall endeavor in good
faith negotiations to replace the illegal, invalid or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible
to that of the illegal, invalid or unenforceable provisions. The invalidity of
a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


10.15      Tax Forms.


 


(a)           (i)            Each Lender that is not a “United States
person” within the meaning of Section 7701(a)(30) of the Code (a “Foreign
Lender”) shall deliver to the Administrative Agent, prior to receipt of any
payment subject to withholding under the Code (or upon


 


67

















 


accepting an
assignment of an interest herein), two duly signed completed copies of either
IRS Form W-8BEN or any successor thereto (relating to such Foreign Lender and
entitling it to an exemption from withholding tax on all payments to be made to
such Foreign Lender by the Borrower pursuant to this Agreement) or IRS Form
W-8ECI or any successor thereto (relating to all payments to be made to such
Foreign Lender by the Borrower pursuant to this Agreement) or such other
evidence satisfactory to the Borrower and the Administrative Agent that such
Foreign Lender is entitled to an exemption from withholding tax, including any
exemption pursuant to Section 881(c) of the Code. Thereafter and from time to
time, each such Foreign Lender shall (A) promptly submit to the Administrative
Agent such additional duly completed and signed copies of one of such forms (or
such successor forms as shall be adopted from time to time by the relevant
United States taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is
satisfactory to the Borrower and the Administrative Agent of any available
exemption from or reduction of, United States withholding taxes in respect of
all payments to be made to such Foreign Lender by the Borrower pursuant to this
Agreement, (B) promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction, and (C) take such steps as shall not be materially disadvantageous
to it, in the reasonable judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws that the Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.


 


(ii)           Each Foreign Lender, to
the extent it does not act or ceases to act for its own account with respect to
any portion of any sums paid or payable to such Lender under any of the Loan
Documents (for example, in the case of a typical participation by such Lender),
shall deliver to the Administrative Agent on the date when such Foreign Lender
ceases to act for its own account with respect to any portion of any such sums
paid or payable, and at such other times as may be necessary in the
determination of the Administrative Agent (in the reasonable exercise of its
discretion), (A) two duly signed completed copies of the forms or statements
required to be provided by such Lender as set forth above, to establish the
portion of any such sums paid or payable with respect to which such Lender acts
for its own account that is not subject to U.S. withholding tax, and (B) two
duly signed completed copies of IRS Form W-8IMY (or any successor thereto),
together with any information such Lender chooses to transmit with such form,
and any other certificate or statement of exemption required under the Code, to
establish that such Lender is not acting for its own account with respect to a
portion of any such sums payable to such Lender.


 


(iii)          The Borrower shall not
be required to pay any additional amount to any Foreign Lender under Section
3.01 (A) with respect to any Taxes required to be deducted or withheld on
the basis of the information, certificates or statements of exemption such
Lender transmits with an IRS Form W-8IMY pursuant to this Section 10.15(a)
or (B) if such Lender shall have failed to satisfy the foregoing provisions of
this Section 10.15(a); provided that if such Lender shall have
satisfied the requirement of this Section 10.15(a) on the date such
Lender became a Lender or ceased to act for its own account with respect to any
payment under any of the Loan Documents, nothing in this Section 10.15(a) 


 


68

















 


shall relieve the
Borrower of its obligation to pay any amounts pursuant to Section 3.01
in the event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of which
such Lender receives any sums payable under any of the Loan Documents is not
subject to withholding or is subject to withholding at a reduced rate.


 


(iv)          The Administrative Agent
may, without reduction, withhold any Taxes required to be deducted and withheld
from any payment under any of the Loan Documents with respect to which the
Borrower is not required to pay additional amounts under this Section
10.15(a).


 


(b)           Upon the request of the
Administrative Agent, each Lender that is a “United States person” within the
meaning of Section 7701(a)(30) of the Code shall deliver to the Administrative
Agent two duly signed completed copies of IRS Form W-9. If such Lender fails to
deliver such forms, then the Administrative Agent may withhold from any
interest payment to such Lender an amount equivalent to the applicable back-up
withholding tax imposed by the Code, without reduction.


 


(c)           If
any Governmental Authority asserts that the Administrative Agent did not properly
withhold or backup withhold, as the case may be, any tax or other amount from
payments made to or for the account of any Lender, such Lender shall indemnify
the Administrative Agent therefor, including all penalties and interest, any
taxes imposed by any jurisdiction on the amounts payable to the Administrative
Agent under this Section, and costs and expenses (including Attorney Costs) of
the Administrative Agent. The obligation of the Lenders under this Section
shall survive the termination of the Aggregate Commitments, repayment of all
other Obligations hereunder and the resignation of the Administrative Agent.


 


10.16      Governing Law.


 


(a)           THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED
THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.


 


(b)           ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE COUNTY OF NEW
YORK OR OF THE UNITED STATES FOR THE  SOUTHERN  DISTRICT
OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER,
THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER,
THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE


 


69

















 


LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING
IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED
THERETO. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.


 


10.17      Waiver of
Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.


 


10.18      USA PATRIOT Act Notice. Each Lender and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower
that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Act”), it is required
to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to
identify the Borrower in accordance with the Act.


 


70

















 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed as of the date first above written.


 


	
   

  	
  THE NEW YORK TIMES COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ R. Anthony Benten

  	
   

  
	
   

  	
  Name:

  	
  R. Anthony Benten

  	
   

  
	
   

  	
  Title:

  	
  Vice President & Treasurer

  	
   

  
						



 

















 


	
   

  	
  BANK OF AMERICA, N.A., as Administrative

  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas J. Kane

  	
   

  
	
   

  	
  Name:

  	
  Thomas J. Kane

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
						



 


	
   

  	
  BANK OF AMERICA, N.A., as a Lender, L/C

  Issuer and Swing Line Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas J. Kane

  	
   

  
	
   

  	
  Name:

  	
  Thomas J. Kane

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
						



 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Susan H. Atha

  	
   

  
	
   

  	
  Name:

  	
  Susan H. Atha

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward M. Vietor

  	
   

  
	
   

  	
  Name:

  	
  Edward M. Vietor

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


	
   

  	
  SUNTRUST BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas C. Palmer

  	
   

  
	
   

  	
  Name:

  	
  Thomas C. Palmer

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
						



 


	
   

  	
  CITIZENS BANK OF MASSACHUSETTS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Elwell

  	
   

  
	
   

  	
  Name:

  	
  Michael Elwell

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


	
   

  	
  MELLON BANK, NA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul F. Noel

  	
   

  
	
   

  	
  Name:

  	
  Paul F. Noel

  	
   

  
	
   

  	
  Title:

  	
  First Vice President

  	
   

  
						



 


	
   

  	
  THE NORTHERN TRUST COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter Hallan

  	
   

  
	
   

  	
  Name:

  	
  Peter Hallan

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


	
   

  	
  UNION BANK OF CALIFORNIA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Vian

  	
   

  
	
   

  	
  Name:

  	
  Richard Vian

  	
   

  
	
   

  	
  Title:

  	
  Assistant Vice President

  	
   

  
						



 


	
   

  	
  WACHOVIA BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark L. Cook

  	
   

  
	
   

  	
  Name:

  	
  Mark L. Cook

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 


	
   

  	
  WELLS FARGO BANK, National
  Association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lori Avedikian

  	
   

  
	
   

  	
  Name:

  	
  Lori Avedikian

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


	
   

  	
  NATEXIS BANQUES POPULAIRES

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Caroline Verot Moore

  	
   

  
	
   

  	
  Name:

  	
  Caroline Verot Moore

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ PJ van Tulder

  	
   

  
	
   

  	
  Name:

  	
  PJ van Tulder

  	
   

  
	
   

  	
  Title:

  	
  Group Head

  	
   

  
						



 

















 


	
   

  	
  HSBC BANK USA National
  Association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce Wicks

  	
   

  
	
   

  	
  Name:

  	
  Bruce Wicks

  	
   

  
	
   

  	
  Title:

  	
  First Vice President

  	
   

  
						



 


	
   

  	
  BARCLAYS BANK PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicholas Bell

  	
   

  
	
   

  	
  Name:

  	
  Nicholas Bell

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 
















 


SCHEDULE 2.01


 


COMMITMENTS 

AND PRO RATA SHARES


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Pro Rata Share

  	
   

  
	
  Bank of
  America, N.A.

  	
   

  	
  $

  	
  43,200,000

  	
   

  	
  10.800000000

  	
  %

  
	
  JP Morgan
  Chase Bank

  	
   

  	
  $

  	
  43,200,000

  	
   

  	
  10.800000000

  	
  %

  
	
  The Bank of
  New York

  	
   

  	
  $

  	
  43,200,000

  	
   

  	
  10.800000000

  	
  %

  
	
  SunTrust Bank

  	
   

  	
  $

  	
  43,200,000

  	
   

  	
  10.800000000

  	
  %

  
	
  Citizens
  Bank of Massachusetts

  	
   

  	
  $

  	
  43,200,000

  	
   

  	
  10.800000000

  	
  %

  
	
  Mellon Bank,
  N.A.

  	
   

  	
  $

  	
  23,000,000

  	
   

  	
  5.750000000

  	
  %

  
	
  The Northern
  Trust Company

  	
   

  	
  $

  	
  23,000,000

  	
   

  	
  5.750000000

  	
  %

  
	
  Wachovia
  Bank, N.A.

  	
   

  	
  $

  	
  23,000,000

  	
   

  	
  5.750000000

  	
  %

  
	
  Union Bank
  of California, N.A.

  	
   

  	
  $

  	
  23,000,000

  	
   

  	
  5.750000000

  	
  %

  
	
  Wells Fargo
  Bank, N.A.

  	
   

  	
  $

  	
  23,000,000

  	
   

  	
  5.750000000

  	
  %

  
	
  Natexis
  Banques Populaires

  	
   

  	
  $

  	
  23,000,000

  	
   

  	
  5.750000000

  	
  %

  
	
  HSBC Bank
  USA

  	
   

  	
  $

  	
  23,000,000

  	
   

  	
  5.750000000

  	
  %

  
	
  Barclays
  Bank Plc

  	
   

  	
  $

  	
  23,000,000

  	
   

  	
  5.750000000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  400,000,000

  	
   

  	
  100.000000000

  	
  %

  



 


1

















 


SCHEDULE 5.09


 


Taxes


 


Federal income tax returns for all years through 2000 have been
examined by the Internal Revenue Service. Amended state returns due to federal
audits have been filed for all years through 2000.


 


An examination of the 2001-2002 federal income tax returns is expected
in the near future. State audits are ongoing and being brought to date through
the year 2000. Assessments and refunds are expected.


 


Neither the expected refunds nor the expected assessments will have a
material effect on the Borrower’s consolidated financial statements.


 


1

















 


SCHEDULE 5.10


 


SUBSIDIARIES


 


(a) Consolidated Subsidiaries of The New York Times Company (the
“Company”)(1)


 


	
   

  	
   

  	
  Jurisdiction of

  
	
   

  	
   

  	
  Incorporation or

  
	
  Name of Subsidiary

  	
   

  	
  Organization

  
	
  The New York
  Times Company

  	
   

  	
  New York Corporation

  
	
  IHT Corp.

  	
   

  	
  Delaware Corporation

  
	
  International
  Herald Tribune S.A.S.

  	
   

  	
  France Corporation

  
	
  International
  Business Development (IBD)

  	
   

  	
  France Corporation

  
	
  International
  Herald Tribune (Hong Kong) LTD.

  	
   

  	
  Hong Kong Corporation

  
	
  International
  Herald Tribune (Singapore) LTD.

  	
   

  	
  Singapore Corporation

  
	
  International
  Herald Tribune A.G.

  	
   

  	
  Switzerland Corporation

  
	
  International
  Herald Tribune B.V.

  	
   

  	
  Amsterdam Corporation

  
	
  International
  Herald Tribune Ltd. (U.K.)

  	
   

  	
  United Kingdom Corporation

  
	
  IHT
  (Distributors) LTD.

  	
   

  	
  United Kingdom Corporation

  
	
  International
  Herald Tribune U.S. Inc.

  	
   

  	
  New York Corporation

  
	
  London
  Bureau Limited

  	
   

  	
  United Kingdom Corporation

  
	
  New York
  Times Digital, LLC

  	
   

  	
  Delaware Limited Liability Company

  
	
  Northern SC
  Paper Corporation (80%)

  	
   

  	
  Delaware Corporation

  
	
  NYT Group
  Services, LLC

  	
   

  	
  Delaware Limited Liability Company

  
	
  NYT Press
  Services, LLC

  	
   

  	
  Delaware Limited Liability Company

  
	
  NYT Real
  Estate Company LLC

  	
   

  	
  New York Limited Liability Company

  
	
  The New York
  Times Building LLC (58%)

  	
   

  	
  New York Limited Liability Company

  
	
  Rome Bureau
  S.R.L.

  	
   

  	
  Italy Corporation

  
	
  NYT Capital,
  Inc.

  	
   

  	
  Delaware Corporation

  
	
  City &
  Suburban Delivery Systems, Inc

  	
   

  	
  Delaware Corporation

  
	
  Comet-Press
  Newspapers, Inc.

  	
   

  	
  Delaware Corporation

  
	
  Comet-Press
  Newspapers Holdings, Inc.

  	
   

  	
  Delaware Corporation

  
	
  Globe
  Newspaper Company, Inc.

  	
   

  	
  Massachusetts Corporation

  
	
  Boston Globe
  Electronic Publishing, LLC

  	
   

  	
  Delaware Limited Liability Company

  
	
  Boston Globe
  Marketing, LLC

  	
   

  	
  Delaware Limited Liability Company

  
	
  Globe
  Specialty Products, LLC

  	
   

  	
  Delaware Limited Liability Company

  
	
  Retail
  Sales, LLC

  	
   

  	
  Delaware Limited Liability Company

  
	
  Hendersonville
  Newspaper Corporation

  	
   

  	
  North Carolina Corporation

  
	
  Hendersonville
  Newspaper Holdings, Inc.

  	
   

  	
  Delaware Corporation

  
	
  Lakeland
  Ledger Publishing Corporation

  	
   

  	
  Florida Corporation

  
	
  Lakeland
  Ledger Holdings, Inc.

  	
   

  	
  Delaware Corporation

  
	
  Midtown
  Insurance Company

  	
   

  	
  New York Captive Insurance Company

  
	
  NYT
  Holdings, Inc.

  	
   

  	
  Delaware Corporation

  
	
  NYT
  Broadcast Holdings, LLC

  	
   

  	
  Delaware Limited Liability Company

  
	
  New York
  Times Management Services

  	
   

  	
  Massachusetts Business Trust

  
	
  NYT
  Management Services, Inc.

  	
   

  	
  Delaware Corporation

  
	
  NYT Shared
  Service Center, Inc.

  	
   

  	
  Delaware Corporation

  
	
  International
  Media Concepts, Inc.

  	
   

  	
  Delaware Corporation

  
	
  The Dispatch
  Publishing Company, Inc.

  	
   

  	
  North Carolina Corporation

  
	
  The Dispatch
  Publishing Holdings, Inc.

  	
   

  	
  Delaware Corporation

  
	
  The Houma
  Courier Newspaper Corporation

  	
   

  	
  Delaware Corporation

  
	
  The Houma
  Courier Newspaper Holdings, Inc

  	
   

  	
  Delaware Corporation

  
	
  The New York
  Times Distribution Corporation

  	
   

  	
  Delaware Corporation

  
	
  The New York
  Times Electronic Media Company

  	
   

  	
  Delaware Corporation

  
	
  The New York
  Times Sales Company

  	
   

  	
  Massachusetts Business Trust

  
	
  The New York
  Times Syndication Sales Corporation

  	
   

  	
  Delaware Corporation

  
	
  The
  Spartanburg Herald-Journal, Inc.

  	
   

  	
  Delaware Corporation

  
	
  Times
  Leasing, Inc.

  	
   

  	
  Delaware Corporation

  
	
  Times
  On-Line Services, Inc.

  	
   

  	
  New Jersey Corporation

  
	
  Worcester
  Telegram & Gazette Corporation

  	
   

  	
  Massachusetts Corporation

  
	
  Worcester
  Telegram & Gazette Holdings, Inc.

  	
   

  	
  Delaware Corporation

  



 






(1)   100% owned unless otherwise indicated.


 

















 


(b) Significant Subsidiaries


 


Below is a list of the Company’s Significant Subsidiaries as of
December 28, 2003.  This list was derived
using the test of greater than 7% of revenues or assets.  


 


1.     NYT Capital, Inc.


2.     The New York Times Sales Company


3.     Globe Newspaper Company, Inc.


4.     NYT Holdings, Inc.


5.     NYT Broadcast Holdings, LLC


6.     Worcester Telegram & Gazette Corporation


7.     NYT Management Services, Inc.


 

















 


SCHEDULE 10.02


 


ADMINISTRATIVE
AGENT’S OFFICE, 

CERTAIN ADDRESSES FOR NOTICES


 


THE NEW YORK TIMES COMPANY:


 


229 West 43rd Street


New York, New York 10036


Attention: Treasurer


Telephone: (212) 556-1713


Facsimile: (212) 556-1646


Electronic Mail: bentent@nytimes.com


 


 


ADMINISTRATIVE AGENT:


 


Administrative Agent’s Office 


(for payments and Requests for Credit Extensions):


Agency Management Officer


Bank of America, N.A.


1850 Gateway Blvd.


Mail Code: CA-4-706-05-09


Concord, CA  94520-3282


Attention: G.K. Lapitan


Telephone: 
925.675.8205


Facsimile: 
888.969.9170


Electronic Mail:  g.k.lapitan@bankofamerica.com


Ref:  3750836479


ABA# 111000012


 


Other Notices as Administrative Agent:


Bank of America, N.A.


Agency Management


335 Madison Avenue, 5th Floor


Mail Code:


New York, New York   10017


Attention: 
Thomas J. Kane


    Principal,
Entertainment/Media Group


Telephone: 
(212) 503-7980


Facsimile: 
(212) 503-7173


Electronic Mail:  thomas.j.kane@bankofamerica.com


 


1

















 


L/C ISSUER:


 


Bank of America, N.A.


Trade Operations-Los Angeles #22621


333 S. Beaudry Avenue, 19th Floor


Mail
Code:  CA9-703-19-23


Los Angeles,
CA 90017-1466


Attention:      Sandra Leon


Vice President


Telephone: 
213.345.5231


Facsimile: 
213.345.6694


Electronic Mail:  Sandra.Leon@bankofamerica.com


 


SWING LINE LENDER:


 


Bank of America, N.A.


1850 Gateway Blvd.


Mail Code: CA-4-706-05-09


Concord, CA  94520-3282


Attention: G.K. Lapitan


Telephone: 
925.675.8205


Facsimile: 
888.969.9170


Electronic Mail:  g.k.lapitan@bankofamerica.com


Ref:  3750836479


ABA# 111000012


 


2

















 


EXHIBIT A


 


FORM OF COMMITTED
LOAN NOTICE


 


Date:             ,
     


 


To:          Bank of America, N.A., as
Administrative Agent


 


Ladies and
Gentlemen:


 


Reference is
made to that certain Credit Agreement, dated as of May 28, 2004 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “Agreement”; the
terms defined therein being used herein as therein defined), among The New York
Times Company, a New York corporation (the “Borrower”), the Lenders from
time to time party thereto, and Bank of America, N.A., as Administrative Agent,
L/C Issuer and Swing Line Lender.


 


The
undersigned hereby requests (select one):


 


o A Borrowing of
Committed Loans               o
A conversion or continuation of Loans


 


1.          On                                                       
(a Business Day).


 


2.          In the amount of $                   .


 


3.          Comprised of                                         .


    [Type of Committed Loan requested]


 


4.          For Eurodollar Rate
Loans:  with an Interest Period of            
months.


 


The Committed Borrowing requested herein complies with the proviso to
the first sentence of Section 2.01 of the Agreement.


 


	
   

  	
  THE NEW YORK TIMES COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


A-1

















 


EXHIBIT B


 


FORM OF SWING LINE
LOAN NOTICE


 


Date:             ,
     


 


To:          Bank
of America, N.A., as Swing Line Lender


Bank of America, N.A., as Administrative Agent


 


Ladies and
Gentlemen:


 


Reference is
made to that certain Credit Agreement, dated as of May 28, 2004 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “Agreement”; the
terms defined therein being used herein as therein defined), among The New York
Times Company, a New York corporation (the “Borrower”), the Lenders from
time to time party thereto, and Bank of America, N.A., as Administrative Agent,
L/C Issuer and Swing Line Lender.


 


The
undersigned hereby requests a Swing Line Loan:


 


1.             On                                     
(a Business Day).


 


2.             In the amount of $                     .


 


The Swing Line
Borrowing requested herein complies with the requirements of the provisos to
the first sentence of 

Section 2.04(a) of the Agreement.


 


	
   

  	
  THE NEW YORK TIMES COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


B-1

















 


EXHIBIT C-1


 


FORM OF NOTE


 


 


 


FOR VALUE
RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to                              
or registered assigns (the “Lender”), in accordance with the provisions
of the Agreement (as hereinafter defined), the principal amount of each Loan
from time to time made by the Lender to the Borrower under that certain Credit
Agreement, dated as of May 28, 2004
(as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement”; the terms defined therein being used
herein as therein defined), among the Borrower, the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer
and Swing Line Lender.


 


The Borrower
promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest
rates and at such times as provided in the Agreement. Except as otherwise provided in Section 2.04(f) of the Agreement
with respect to Swing Line Loans, all payments of principal and interest
shall be made to the Administrative Agent for the account of the Lender in
Dollars in immediately available funds at the Administrative Agent’s Office. If
any amount is not paid in full when due hereunder, such unpaid amount shall
bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.


 


This Note is
one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. Upon the occurrence and continuation of one or
more of the Events of Default specified in the Agreement, all amounts then
remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of its
Loans and payments with respect thereto.


 


The Borrower,
for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of
this Note.


 


THIS NOTE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.


 


	
   

  	
  THE NEW YORK TIMES COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


C-1-1

















 


LOANS AND PAYMENTS
WITH RESPECT THERETO


 


	
  Date

  	
   

  	
  Type of

  Loan Made

  	
   

  	
  Amount of

  Loan Made

  	
   

  	
  End of

  Interest

  Period

  	
   

  	
  Amount of

  Principal or

  Interest Paid

  This Date

  	
   

  	
  Outstanding

  Principal

  Balance

  This Date

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


C-1-2

















 


EXHIBIT C-2


 


FORM OF SWING LINE
NOTE


 


	
  $[                ]

  	
   

  



 


FOR VALUE
RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to BANK OF AMERICA, N.A. or registered assigns
(the “Lender”), in accordance with the provisions of the Agreement (as
hereinafter defined), the principal amount of each Swing Line Loan from time to
time made by the Lender to the Borrower under that certain Credit Agreement,
dated as of May 28, 2004 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement”; the terms defined therein being used
herein as therein defined), among the Borrower, the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer
and Swing Line Lender.


 


The Borrower
promises to pay interest on the unpaid principal amount of each Swing Line Loan
from the date of such Swing Line Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the Agreement. Except as otherwise provided in Section
2.04(f) of the Agreement with respect to Swing Line Loans, all
payments of principal and interest shall be made to the Administrative Agent
for the account of the Lender in Dollars in immediately available funds at the
Administrative Agent’s Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.


 


This Note is
one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. Upon the occurrence and continuation of one or
more of the Events of Default specified in the Agreement, all amounts then
remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of its
Loans and payments with respect thereto.


 


The Borrower,
for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of
this Note.


 


C-2-1

















 


THIS NOTE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.


 


	
   

  	
  THE NEW YORK TIMES COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


C-2-2

















 


LOANS AND PAYMENTS
WITH RESPECT THERETO


 


	
  Date

  	
   

  	
  Type of

  Loan Made

  	
   

  	
  Amount of

  Loan Made

  	
   

  	
  End of

  Interest

  Period

  	
   

  	
  Amount of

  Principal or

  Interest Paid

  This Date

  	
   

  	
  Outstanding

  Principal

  Balance

  This Date

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


C-2-3

















 


EXHIBIT D


 


FORM OF COMPLIANCE
CERTIFICATE


 


Financial
Statement Date:            ,
     


 


To:          Bank of America, N.A., as
Administrative Agent


 


Ladies and
Gentlemen:


 


Reference is
made to that certain Credit Agreement, dated as of May 28, 2004 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “Agreement”; the
terms defined therein being used herein as therein defined), among The New York
Times Company, a New York corporation (the “Borrower”), the Lenders from
time to time party thereto, and Bank of America, N.A., as Administrative Agent,
L/C Issuer and Swing Line Lender.


 


The
undersigned Responsible Officer hereby certifies as of the date hereof that
he/she is the                                              
of the Borrower, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Borrower, and
that:


 


[Use following paragraph 1 for fiscal year-end financial statements]


 


1.             Attached hereto as Schedule 1
are the year-end audited financial statements required by Section 6.01(a)
of the Agreement for the fiscal year of the Borrower ended as of the above
date, together with the report and opinion of an independent certified public
accountant required by such section.


 


[Use following paragraph 1 for fiscal quarter-end financial statements]


 


1.             Attached hereto as Schedule 1
are the unaudited financial statements required by Section 6.01(b) of
the Agreement for the fiscal quarter of the Borrower ended as of the above date.
Such financial statements fairly present the financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries in accordance
with GAAP as at such date and for such period, subject only to normal year-end
audit adjustments and the absence of footnotes.


 


2.             The undersigned has reviewed and is
familiar with the terms of the Agreement and has made, or has caused to be made
under his/her supervision, a detailed review of the transactions and condition
(financial or otherwise) of the Borrower during the accounting period covered
by the attached financial statements.


 


3.             A review of the activities of the
Borrower during such fiscal period has been made under the supervision of the
undersigned with a view to determining whether during such fiscal period the
Borrower performed and observed all its Obligations under the Loan Documents,
and


 


D-1

















 


[select one:]


 


[to the
best knowledge of the undersigned during such fiscal period, the Borrower
performed and observed each covenant and condition of the Loan Documents
applicable to it.]


 


—or—


 


[the
following covenants or conditions have not been performed or observed and the
following is a list of each such Default and its nature and status:]


 


4.             The representations and warranties
of the Borrower contained in Article V of the Agreement are true and
correct in all material respects on and as of the date hereof, except to the
extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier date,
and except that for purposes of this Compliance Certificate, the
representations and warranties contained in Section 5.05 of the
Agreement shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 6.01
of the Agreement, including the statements in connection with which this
Compliance Certificate is delivered.


 


5.             The financial covenant analyses and
information set forth on Schedule 2 attached hereto are true and
accurate on and as of the date of this Compliance Certificate.


 


IN WITNESS WHEREOF, the undersigned has
executed this Compliance Certificate as of                ,
     .


 


	
   

  	
  THE NEW YORK TIMES COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


D-2

















 


For the
Quarter/Year ended                    (“Statement
Date”)


 


SCHEDULE 2


to the Compliance Certificate

($ in 000’s)


 


Section 7.03 – Minimum Stockholders’ Equity.


 


	
  A.

  	
   

  	
  25% of Net
  Income of the Borrower and its Consolidated Subsidiaries for each
  fiscal year ending after December 28, 2003

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
   

  	
  Line A plus
  $950,000,000:

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
   

  	
  Stockholders’
  Equity for the fiscal quarter ending on the above date:

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D. 

  	
   

  	
  Excess
  (deficient) for covenant compliance (Line C minus Line B): 

  	
   

  	
  $

  	
   

  
							



 


D-3

















 


EXHIBIT E


 


ASSIGNMENT AND
ASSUMPTION


 


This
Assignment and Assumption (this “Assignment and Assumption”) is dated as
of the Effective Date set forth below and is entered into by and between [Insert name of Assignor]
(the “Assignor”) and [Insert name of Assignee] (the “Assignee”).
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to
and incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.


 


For an agreed
consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor’s rights and
obligations as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, the Letters of Credit and the Swing Line Loans
included in such facilities) and (ii) to the extent permitted to be assigned
under applicable law, all claims, suits, causes of action and any other right
of the Assignor (in its capacity as a Lender) against any Person, whether known
or unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice
claims, statutory claims and all other claims at law or in equity related to
the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned pursuant to clauses (i)
and (ii) above being referred to herein collectively as, the “Assigned
Interest”). Such sale and assignment is without recourse to the Assignor
and, except as expressly provided in this Assignment and Assumption, without
representation or warranty by the Assignor.


 


	
  1.

  	
   

  	
  Assignor:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Assignee:

  	
   

  	
                                                            [and
  is an Affiliate/Approved Fund of [identify
  Lender](1)]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Borrower(s):

  	
   

  	
  The New York Times Company

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Administrative Agent:

  	
   

  	
                                         ,
  as the administrative agent under the Credit Agreement

  



 






(1)           Select as applicable.


 


E-1

















 


	
  5.

  	
  Credit Agreement:

  	
  Credit Agreement, dated as of May 28, 2004, among The New York Times
  Company, the Lenders from time to time party thereto, and Bank of America,
  N.A., as Administrative Agent, L/C Issuer, and Swing Line Lender

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Assigned Interest:

  	
   

  



 


	
  Facility Assigned

  	
   

  	
  Aggregate Amount of

  Commitment

  for all Lenders*

  	
   

  	
  Amount of

  Commitment

  Assigned*

  	
   

  	
  Percentage

  Assigned of

  Commitment(2)

  	
   

  	
  CUSIP

  Number

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  



 






*            Amount to be adjusted by the counterparties
to take into account any payments or prepayments made between the Trade Date
and the Effective Date.


 


	
  [7.

  	
  Trade Date:

  	
                                   ](3)

  



 


 


Effective Date:                          ,
20     [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]


 


The terms set
forth in this Assignment and Assumption are hereby agreed to:


 


	
   

  	
  ASSIGNOR

  
	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 






(2)   Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.


 


(3)   To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.


 


E-2

















 


[Consented to and](4)Accepted:


 


[NAME OF ADMINISTRATIVE AGENT],


as Administrative Agent


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


[Consented to:](5)


	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 






(4)   To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.


(5)   To
be added only if the consent of the Borrower and/or other parties (e.g. L/C
Issuer) is required by the terms of the Credit Agreement.


 


E-3

















 


ANNEX 1 TO ASSIGNMENT AND ASSUMPTION


 


[                           ](6)


 


STANDARD TERMS AND
CONDITIONS FOR 

ASSIGNMENT AND ASSUMPTION


 


1.             Representations and Warranties.


 


1.1.          Assignor. The Assignor (a)
represents and warrants that (i) it is the legal and beneficial owner of the
Assigned Interest, (ii) the Assigned Interest is free and clear of any lien,
encumbrance or other adverse claim and (iii) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b)
assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries
or Affiliates or any other Person obligated in respect of any Loan Document or
(iv) the performance or observance by the Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any
Loan Document.


 


1.2.          Assignee. The Assignee (a)
represents and warrants that (i) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and
to consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee
under the Credit Agreement (subject to receipt of such consents as may be
required under the Credit Agreement), (iii) from and after the Effective Date,
it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 6.01 thereof, as applicable, and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and
to purchase the Assigned Interest on the basis of which it has made such
analysis and decision independently and without reliance on the Administrative
Agent or any other Lender, and (v) if it is a Foreign Lender, attached hereto
is any documentation required to be delivered by it pursuant to the terms of
the Credit Agreement, duly completed and executed by the Assignee; and (b)
agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.


 






(6)           Describe Credit Agreement at option
of Administrative Agent.


 


E-4

















 


2.             Payments. From and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and
other amounts) to the Assignor for amounts which have accrued to the Effective
Date and to the Assignee for amounts which have accrued from and after the
Effective Date.


 


3.             General Provisions. This
Assignment and Assumption shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery of an executed counterpart of a
signature page of this Assignment and Assumption by telecopy shall be effective
as delivery of a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be governed by, and construed
in accordance with, the law of the State of New York.


 


E-5

















 


EXHIBIT F


 


OPINION MATTERS


 


To be
negotiated and to include opinions substantially similar to the legal opinion
delivered pursuant to the Existing Credit Agreement. The matters contained in
the following Sections of the Credit Agreement should be also covered by the
legal opinion:


 


•                  Section
5.01


 


•                  Section
5.02


 


•                  Section
5.03


 


•                  Section
5.04


 


•                  Section
5.06


 


•                  Section
5.12


 


[Add other matters as appropriate to the transaction]


 


F-1

















 


EXHIBIT G


 


FORM OF EXTENSION REQUEST


 


[Date]


 


Bank of America, N.A.


as Administrative Agent


[ADDRESS]


 


Attention:  


 


Dear Sirs:


 


We refer to
the Credit Agreement (the “Credit Agreement”) dated as of May 28, 2004,
among The New York Times Company, a New York corporation (the “Borrower”),
the Lenders named therein (the “Lenders”) and Bank of America, N.A., as
Administrative Agent (the “Administrative Agent”). Capitalized terms
used herein without definition are used with the meanings given in the Credit
Agreement.


 


Pursuant to Section
2.14 of the Credit Agreement, the Borrower, not later than thirty (30) days
prior to the Maturity Date, hereby irrevocably requests the Lenders to extend
the currently applicable Maturity Date for one year from                       (the
currently applicable Maturity Date) to                       
(one year after the currently applicable Maturity Date).


 


If the Lenders
consent to this request, in addition to the extension of the Maturity Date, the
Credit Agreement shall be deemed amended from and after the currently
applicable Maturity Date as follows (and without further action):


 


1.             The representations and warranties
contained in Article V of the Credit Agreement are correct in all
material respects on and as of the date hereof, as though made on and as of the
date hereof (except to the extent any representation or warranty is made
specifically with respect to a prior date), except that for purposes of this
paragraph 1, Section 5.05 shall be deemed to refer to the most recent
audited year-end consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries and the related statements of income and stockholders’
equity delivered in accordance with Section 6.01 of the Credit
Agreement.


 


2.             The Lenders and each such Lender’s
Commitment shall be as set forth on the annexed “Revised Schedule of Lenders
and Commitments”. In the event such schedule indicates the addition of one or
more new Lenders or the increase in the Commitment of any existing Lender and
provided that the Borrower has already issued Notes to the existing Lenders,
the Borrower shall on or before the currently applicable Maturity Date execute
and deliver, to each such new Lender and Note in the amount of such new Lender’s
Commitment, and to each such existing Lender, a Note in the amount 


 


G-1

















 


of such
existing Lender’s increased Commitment (which Note shall be delivered to such
existing Lender in exchange for the Note currently held by such Lender). In the
event such schedule indicates that any existing Lender shall no longer be a
Lender after the currently applicable Maturity Date, or that any existing
Lender’s Commitment shall be reduced on such date, then on such date, all
outstanding Loans of any such Lenders who shall no longer be Lenders, and the
amount of any outstanding Loans of any Lender whose Commitment is reduced in
excess of such reduced Commitment, shall have been either (i) paid in
full, together with all interest accrued on the amount so paid through such
date, or (ii) assigned to one or more Eligible Assignees (who have consented to
this Extension Request) in accordance with the provisions of Section 10.07.
If either of the conditions set forth in clauses (i) and (ii)
above shall have been satisfied with respect to a Lender who shall no longer be
a Lender, such Lender shall cease to be a Lender hereunder effective on the
currently applicable Maturity Date.


 


By signing
below in the space provided, each Lender indicates its consent to this
extension request and the above-referenced amendments to the Credit Agreement. In
the event that any new Lenders are listed on the annexed schedule, such Lenders
by their signatures below in the space provided agree to be bound by all terms
and provisions of the Credit Agreement as a “Lender”.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  THE NEW YORK TIMES COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  



 


Agreed and Accepted:


 


[Lenders]


 


G-2