Exhibit 10.1


	
   

  



 


The New
York Times Company


 


$250,000,000
Aggregate Principal Amount of

14.053% Senior Unsecured Notes due January 15, 2015


 


and


 


Warrants to
purchase 15,900,000 shares of Class A Common Stock


 






 


Securities
Purchase Agreement


 






 


Dated
January 19, 2009


 


	
   

  



 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  AUTHORIZATION OF NOTES AND WARRANTS

  	
  1

  
	
  SECTION 2.

  	
  SALE AND PURCHASE OF NOTES AND WARRANTS

  	
  2

  
	
  SECTION 3.

  	
  CLOSING

  	
  2

  
	
  SECTION 4(A).

  	
  PURCHASERS’ CONDITIONS TO CLOSING

  	
  3

  
	
  Section 4(A).1.

  	
  Representations and Warranties

  	
  3

  
	
  Section 4(A).2.

  	
  Performance; No Default

  	
  3

  
	
  Section 4(A).3.

  	
  Compliance Certificates

  	
  3

  
	
  Section 4(A).4.

  	
  Opinions of Counsel

  	
  3

  
	
  Section 4(A).5.

  	
  Funding Instructions

  	
  4

  
	
  Section 4(A).6.

  	
  Proceedings and Documents

  	
  4

  
	
  Section 4(A).7.

  	
  Investor Funding Fee

  	
  4

  
	
  Section 4(A).8.

  	
  Warrant Shares

  	
  4

  
	
  Section 4(A).9.

  	
  Laws; Regulations

  	
  4

  
	
  Section 4(A).10.

  	
  Pre-emptive Rights Offer

  	
  4

  
	
  Section 4(A).11.

  	
  Notes and Warrants

  	
  4

  
	
  Section 4(A).12.

  	
  Registration Rights Agreement

  	
  4

  
	
  SECTION 4(B).

  	
  COMPANY’S CONDITIONS TO CLOSING

  	
  5

  
	
  Section 4(B).1.

  	
  Representations and Warranties

  	
  5

  
	
  Section 4(B).2.

  	
  Purchasers’ Performance

  	
  5

  
	
  Section 4(B).3.

  	
  Pre-emptive Rights Offer

  	
  5

  
	
  Section 4(B).4.

  	
  Tax Information

  	
  5

  
	
  SECTION 5.

  	
  REPRESENTATIONS AND WARRANTIES OF THE
  COMPANY

  	
  5

  
	
  Section 5.1.

  	
  Existence; Qualification and Power

  	
  5

  
	
  Section 5.2.

  	
  Authorization; No Contravention; Binding
  Effect

  	
  6

  
	
  Section 5.3.

  	
  Capitalization

  	
  6

  
	
  Section 5.4.

  	
  Warrants and Warrant Shares

  	
  6

  
	
  Section 5.5.

  	
  Disclosure; No Material Adverse Effect

  	
  6

  
	
  Section 5.6.

  	
  Subsidiaries

  	
  7

  
	
  Section 5.7.

  	
  Financial Statements

  	
  7

  
	
  Section 5.8.

  	
  Governmental Authorizations; Other Consents

  	
  7

  
				



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 5.9.

  	
  Litigation

  	
  8

  
	
  Section 5.10.

  	
  Taxes

  	
  8

  
	
  Section 5.11.

  	
  Ownership of Property; Liens

  	
  8

  
	
  Section 5.12.

  	
  ERISA

  	
  8

  
	
  Section 5.13.

  	
  Private Offering by the Company

  	
  9

  
	
  Section 5.14.

  	
  Use of Proceeds; Margin Regulations

  	
  9

  
	
  Section 5.15.

  	
  Investment Company Act of 1940

  	
  9

  
	
  Section 5.16.

  	
  Compliance with Laws

  	
  9

  
	
  Section 5.17.

  	
  Environmental Liability

  	
  10

  
	
  Section 5.18.

  	
  Insurance

  	
  10

  
	
  Section 5.19.

  	
  Intellectual Property

  	
  10

  
	
  Section 5.20.

  	
  Brokers and Finders

  	
  10

  
	
  Section 5.21.

  	
  Anti-takeover Provisions

  	
  11

  
	
  SECTION 6.

  	
  REPRESENTATION OF THE PURCHASERS

  	
  11

  
	
  Section 6.1.

  	
  Purchase for Investment

  	
  11

  
	
  SECTION 7.

  	
  INFORMATION AS TO COMPANY

  	
  11

  
	
  Section 7.1.

  	
  Financial and Business Information

  	
  11

  
	
  Section 7.2.

  	
  Officer’s Certificate

  	
  13

  
	
  Section 7.3.

  	
  Visitation

  	
  14

  
	
  SECTION 8.

  	
  PAYMENT AND PREPAYMENT OF THE NOTES

  	
  14

  
	
  Section 8.1.

  	
  Maturity

  	
  14

  
	
  Section 8.2.

  	
  Optional Prepayments with Make-Whole
  Premium Amount or Applicable Prepayment Premium

  	
  14

  
	
  Section 8.3.

  	
  Mandatory Offer to Prepay in Event of
  Change of Control

  	
  15

  
	
  Section 8.4.

  	
  Prepayments Upon Exercise of Warrants

  	
  16

  
	
  Section 8.5.

  	
  Prepayments Upon a Change in Tax Law

  	
  17

  
	
  Section 8.6.

  	
  Allocation of Partial Prepayments

  	
  17

  
	
  Section 8.7.

  	
  Maturity; Surrender, Etc.

  	
  17

  
	
  SECTION 9(A).

  	
  GENERAL AFFIRMATIVE COVENANTS

  	
  18

  
	
  Section 9(A).1.

  	
  Consummation of Purchase

  	
  18

  
					



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 9(A).2.
  Expenses

  	
  18

  
	
  SECTION 9(B).

  	
  COMPANY AFFIRMATIVE COVENANTS

  	
  18

  
	
  Section 9(B).1.
  Existence

  	
  18

  
	
  Section 9(B).2.
  Maintenance of Properties

  	
  18

  
	
  Section 9(B).3.
  Payment of Taxes and Claims

  	
  18

  
	
  Section 9(B).4.
  Sufficiency of Authorized Common Stock; Exchange Listing

  	
  19

  
	
  Section 9(B).5.
  Certain Notifications Until Closing

  	
  19

  
	
  Section 9(B).6.
  Foreign Ownership 

  	
  19

  
	
  SECTION 10.

  	
  NEGATIVE COVENANTS

  	
  19

  
	
  Section 10.1.

  	
  Liens

  	
  19

  
	
  Section 10.2.

  	
  Incurrence of Indebtedness and Issuance of
  Disqualified Capital Stock

  	
  20

  
	
  Section 10.3.

  	
  Limitations on Sales and Leasebacks

  	
  22

  
	
  Section 10.4.

  	
  Dispositions of Assets; Consolidation or
  Mergers

  	
  22

  
	
  Section 10.5.

  	
  Asset Sales

  	
  23

  
	
  SECTION 11.

  	
  EVENTS OF DEFAULT

  	
  24

  
	
  SECTION 12.

  	
  REMEDIES ON
  DEFAULT, ETC.

  	
  26

  
	
  Section 12.1.

  	
  Acceleration.

  	
  26

  
	
  Section 12.2.

  	
  Other Remedies

  	
  27

  
	
  Section 12.3.

  	
  Rescission

  	
  27

  
	
  Section 12.4.

  	
  No Waivers or Election of Remedies,
  Expenses, Etc.

  	
  27

  
	
  SECTION 13.

  	
  REGISTRATION; EXCHANGE; SUBSTITUTION OF
  NOTES; TRANSFER RESTRICTIONS

  	
  28

  
	
  Section 13.1.

  	
  Registration of Notes

  	
  28

  
	
  Section 13.2.

  	
  Transfer and Exchange of Notes

  	
  28

  
	
  Section 13.3.

  	
  Replacement of Notes

  	
  28

  
	
  Section 13.4.

  	
  Transfer Restrictions

  	
  29

  
	
  Section 13.5.

  	
  Legend

  	
  30

  
	
  Section 13.6.

  	
  Amendments of Transfer Restrictions

  	
  30

  
	
  SECTION 14.

  	
  PAYMENTS ON NOTES

  	
  30

  
	
  Section 14.1.

  	
  Place of Payment

  	
  30

  
				



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 14.2.

  	
  Home Office Payment

  	
  31

  
	
  Section 14.3.

  	
  Additional Payments

  	
  31

  
	
  SECTION 15.

  	
  BROKERS, ETC.

  	
  32

  
	
  Section 15.1.

  	
  Brokers

  	
  32

  
	
  Section 15.2.

  	
  Survival

  	
  32

  
	
  SECTION 16.

  	
  SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
  ENTIRE AGREEMENT

  	
  32

  
	
  SECTION 17.

  	
  AMENDMENT AND WAIVER

  	
  32

  
	
  Section 17.1.

  	
  Requirements

  	
  32

  
	
  Section 17.2.

  	
  Solicitation of Holders of Notes

  	
  33

  
	
  Section 17.3.

  	
  Binding Effect, etc.

  	
  33

  
	
  Section 17.4.

  	
  Notes Held by Company, etc.

  	
  33

  
	
  SECTION 18.

  	
  NOTICES

  	
  33

  
	
  SECTION 19.

  	
  REPRODUCTION OF DOCUMENTS

  	
  34

  
	
  SECTION 20.

  	
  CONFIDENTIAL INFORMATION

  	
  34

  
	
  SECTION 21.

  	
  SUBSTITUTION OF PURCHASER

  	
  35

  
	
  SECTION 22.

  	
  MISCELLANEOUS

  	
  36

  
	
  Section 22.1.

  	
  Termination

  	
  36

  
	
  Section 22.2.

  	
  Successors and Assigns

  	
  36

  
	
  Section 22.3.

  	
  Payments Due on Non-Business Days

  	
  36

  
	
  Section 22.4.

  	
  Updates of Tax Information

  	
  36

  
	
  Section 22.5.

  	
  Accounting Terms

  	
  37

  
	
  Section 22.6.

  	
  Severability

  	
  37

  
	
  Section 22.7.

  	
  Construction, etc.

  	
  37

  
	
  Section 22.8.

  	
  Counterparts

  	
  37

  
	
  Section 22.9.

  	
  Governing Law

  	
  37

  
	
  Section 22.10.

  	
  Interest Rate Limitation

  	
  37

  
	
  Section 22.11.

  	
  Jurisdiction and Process; Waiver of Jury
  Trial

  	
  38

  
	
  Section 22.12.

  	
  Acknowledgment

  	
  38

  
				



 


iv

















 


	
  SCHEDULE A

  	
  —

  	
  INFORMATION RELATING TO PURCHASERS

  
	
   

  	
   

  	
   

  
	
  Schedule B

  	
  —

  	
  Defined Terms

  
	
   

  	
   

  	
   

  
	
  Schedule 5.3

  	
  —

  	
  Capitalization

  
	
   

  	
   

  	
   

  
	
  Schedule 5.5

  	
  —

  	
  Disclosure Matters

  
	
   

  	
   

  	
   

  
	
  Schedule 5.6

  	
  —

  	
  Significant Subsidiaries

  
	
   

  	
   

  	
   

  
	
  Schedule 5.10

  	
  —

  	
  Tax Proceedings

  
	
   

  	
   

  	
   

  
	
  Schedule 10.2(b)(B)

  	
  —       Existing
  Indebtedness

  
	
   

  	
   

  
	
  Schedule 10.2(b)(I)

  	
  —       Existing
  Restricted Guaranties

  
	
   

  	
   

  	
   

  
	
  EXHIBIT 1

  	
  —

  	
  FORM OF 14.053% SENIOR NOTE DUE
  JANUARY 15, 2015

  
	
   

  	
   

  	
   

  
	
  EXHIBIT 2

  	
  —

  	
  FORM OF WARRANT

  
	
   

  	
   

  	
   

  
	
  EXHIBIT 3

  	
  —

  	
  FORM OF REGISTRATION RIGHTS AGREEMENT

  
	
   

  	
   

  	
   

  
	
  EXHIBIT 4(A).4

  	
  —

  	
  Form of Opinions of Special Counsel to
  and General Counsel of the Company

  



 


v

















 


THE NEW YORK
TIMES COMPANY


620 Eighth
Avenue


NEW YORK, NEW
YORK 10018


TELECOPY NO.:  (212) 556-4634


CONFIRMATION NO.:  (212) 556-1995


 


January 19,
2009


 


TO EACH OF THE PURCHASERS LISTED IN


Schedule A
Hereto:


 


Ladies and Gentlemen:


 


The New York
Times Company, a New York corporation, agrees with each of the purchasers of
Notes (as defined below) (in such capacity, each a “Note Purchaser” and collectively the “Note Purchasers”) and each of the
purchasers of Warrants (as defined below) (in such capacity, each a “Warrant Purchaser” and collectively the “Warrant Purchasers”) whose names appear at
the end hereof (generically, each Warrant Purchaser and each Note Purchaser is
a “Purchaser” and collectively,
the Warrant Purchasers and the Note Purchasers are the “Purchasers”) as follows:


 


SECTION 1.                                               AUTHORIZATION
OF NOTES AND WARRANTS.


 


The Company
has authorized the issue and sale of $250,000,000 aggregate principal amount of
its 14.053% Senior Notes due January 15, 2015 (each, a “Note” and collectively the “Notes”, such term to include any such notes
issued in substitution therefor pursuant to Section 13).  The Notes shall be substantially in the form
set out in Exhibit 1, with such changes therefrom, if any, as may
be approved by you and the Company.  Each
Note shall bear interest from the date thereof until such Note shall become due
and payable in accordance with the terms thereof and hereof (whether at
maturity, by acceleration or otherwise) at the rate of fourteen and 53/1000
percent (14.053%) per annum.  Interest at
the rate of eleven and 53/1000 percent (11.053%) per annum shall be payable in
cash.  Interest at the rate of three
percent (3%) per annum shall be payable by issuing additional Notes of like
tenor in the principal amount of such interest (the amount of such interest,
the “PIK Amount”) and shall be
capitalized on each Interest Payment Date (as defined below) by the increase of
the principal amount outstanding under each Note by the PIK Amount as evidenced
in the Note Register; provided,
that, at the election of the Company, and on prior notice to the holders of the
Notes, such interest may be paid in cash. 
Interest is due, in each case, semiannually in arrears on the fifteenth
(15th) day of January and July in each year (each an “Interest Payment Date”), commencing July 15,
2009.  Interest on each Note shall be computed
on the basis of a three hundred sixty-five (365) day year.  The Company shall also pay, on the first
Interest Payment Date occurring after the fifth (5th) anniversary of the
Closing Date and on each subsequent Interest Payment Date, a portion of the PIK
Amount (and, if necessary, a portion of the original principal amount of the
Notes) in an amount sufficient, but not in excess of the amount necessary, to
ensure that the Notes will not be


 

















 


an “applicable high yield discount obligation”
within the meaning of Section 163(i)(1) of the Code.  The Notes shall have a stated maturity of January 15,
2015.


 


The Company
has authorized the issue and sale of warrants to acquire, as of the date hereof
and subject to adjustment as provided therein, 15,900,000 shares of the Company’s
Class A Common Stock, par value $0.10 per share, at a price per share of
$6.3572 (each a “Warrant” and
collectively, the “Warrants”).  The Warrants shall be substantially in the
form set out in Exhibit 2, with such changes therefrom, if any, as
may be approved by you and the Company.


 


Certain
capitalized and other terms used in this Agreement are defined in Schedule B;
and references to a “Schedule” or an “Exhibit” are, unless otherwise specified,
to a Schedule or an Exhibit attached to this Agreement.


 


SECTION 2.                                               SALE
AND PURCHASE OF NOTES AND WARRANTS.


 


Subject to the
terms and conditions of this Agreement, the Company will issue and sell (i) to
each Note Purchaser and each Note Purchaser will purchase from the Company, at
the Closing provided for in Section 3, Notes in the principal
amount specified opposite such Note Purchaser’s name in Schedule A
and (ii) to each Warrant Purchaser and each Warrant Purchaser will
purchase from the Company, at the Closing provided for in Section 3,
such number of Warrants specified opposite such Warrant Purchaser’s name in Schedule
A.  The aggregate purchase price for
the Notes and the Warrants shall be $250,000,000, and each Purchaser’s
individual aggregate purchase price shall be $125,000,000.


 


The Purchasers’
obligations hereunder are joint and several.


 


SECTION 3.                                               CLOSING.


 


The sale and
purchase of the Notes and Warrants to be purchased by each Purchaser shall
occur at the offices of Morgan, Lewis & Bockius LLP, 101 Park Avenue,
New York, New York 10178 at 10:00 a.m., Eastern Standard Time, at a
closing (the “Closing”) on January 21,
2009 or on such other Business Day thereafter on or prior to January 28,
2009 as may be agreed upon by the Company and the Purchasers.  At the Closing, the Company will deliver to
each Purchaser (i) the Notes to be purchased by such Purchaser in the form
of a single Note (or such greater number of Notes in denominations of at least
$5,000,000 as such Purchaser may request) dated the date of the Closing and
registered in such Note Purchaser’s name (or in the name of its nominee), and (ii) the
Warrants to be purchased by such Purchaser in the form of a single Warrant (or
such greater number of Warrants as such Purchaser may request) dated the date
of the Closing and registered in such Purchaser’s name (or in the name of its
nominee), all against delivery by such Purchaser to the Company or its order of
immediately available funds in the amount of the purchase price therefor by
wire transfer of immediately available funds for the account of the Company in
accordance with the Company’s instructions to the Purchasers.  If at the Closing the Company shall fail to
tender such Notes or such Warrants to any Purchaser as provided above in this Section 3,
or any of the conditions specified in Section 4(A) shall not
have been fulfilled (or waived by such Purchaser), such Purchaser shall, at its
election, be relieved of all further obligations under this Agreement, without
thereby waiving any rights such Purchaser may have by reason of such failure or
such nonfulfillment.


 


2

















 


On or prior to
the date of the Closing, the Company will make a pre-emptive rights offer as
required by its certificate of incorporation and the New York Business Corporation
Law to the holders of its Class B Common Stock pursuant to which the
Company may issue up to 9,500 additional Warrants (with any issuance in excess
of such amount requiring the consent of the Purchasers).


 


SECTION 4(A).                              PURCHASERS’
CONDITIONS TO CLOSING.


 


Each Purchaser’s
obligation to purchase and pay for the Notes and/or the Warrants, as
applicable, to be sold to such Purchaser at the Closing is subject to the
fulfillment (or waiver by such Purchaser), prior to or at the Closing, of the
following conditions:


 


Section 4(A).1.                                       Representations
and Warranties.  The representations
and warranties of the Company set forth in (x) the first sentence of each
of Section 5.1 and 5.2, Section 5.3, Section 5.4
and Section 5.20 of this Agreement shall be true and correct in all
respects as though made on and as of the time of the Closing and (y) the
remaining provisions of Section 5 of this Agreement (disregarding
all qualifications or limitations set forth in such representations and
warranties as to “materiality”, “Material Adverse Effect” and words of
similar import) shall be true and correct as though made on and as of the time
of the Closing (other than representations and warranties that by their terms
speak as of another date, which representations and warranties shall be true
and correct as of such other date), except to the extent that the failure of
such representations and warranties referred to in this Section 4(A).1(y) to
be so true and correct, individually or in the aggregate, does not have and
would not reasonably be expected to have a Material Adverse Effect.


 


Section 4(A).2.                                       Performance;
No Default.  The Company shall have
performed and complied in all material respects with all agreements contained
in this Agreement required to be performed by it prior to or at the Closing and
after giving effect to the issue and sale of the Notes and the Warrants (and
the application of the proceeds thereof as contemplated by Section 5.14)
no Default or Event of Default shall have occurred and be continuing.  Neither the Company nor any Subsidiary shall
have entered into any transaction since September 28, 2008 that would have
been prohibited by Sections 10.1, 10.2, 10.3, 10.4,
or 10.5 hereof had such Sections applied since such date.


 


Section 4(A).3.                                       Compliance
Certificates.


 


(a)                                  Officer’s Certificate.  The Company shall have delivered to such
Purchaser an Officer’s Certificate, dated the date of the Closing, certifying
that the conditions specified in Sections 4(A).1 and 4(A).2 have
been fulfilled.


 


(b)                                 Secretary’s Certificate.  The Company shall have delivered to such
Purchaser a certificate of its Secretary or Assistant Secretary, dated the date
of Closing, certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and delivery of
the Notes, the Warrants and this Agreement.


 


Section 4(A).4.                                       Opinions
of Counsel.  Such Purchaser shall
have received opinions in form and substance reasonably satisfactory to such
Purchaser, dated the date of the Closing, from Morgan, Lewis &
Bockius LLP, counsel for the Company, and Kenneth A.


 


3

















 


Richieri, Senior Vice President, General
Counsel and Secretary of the Company, covering, collectively, the matters set
forth in Exhibit 4(A).4 and covering such other matters incident to
the transactions contemplated hereby as such Purchaser or its counsel may
reasonably request (and the Company hereby instructs its counsel to deliver
such opinions to the Purchasers).


 


Section 4(A).5.                                       Funding
Instructions.  At least one (1) Business
Day prior to the date of the Closing, each Purchaser shall have received
written instructions from a Responsible Officer of the Company providing the
wire transfer information specified in Section 3 including (i) the
name and address of the transferee bank, (ii) such transferee bank’s ABA
number and (iii) the account name and number into which the purchase price
for the Notes and Warrants is to be deposited.


 


Section 4(A).6.                                       Proceedings
and Documents.  All corporate and
other proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions shall
be satisfactory to such Purchaser and its special counsel, and such Purchaser
and its special counsel shall have received all such counterpart originals or
certified or other copies of such documents as such Purchaser or such special
counsel may reasonably request.


 


Section 4(A).7.                                       Investor
Funding Fee.  The Company shall have
paid the Purchasers the Investor Funding Fee.


 


Section 4(A).8.                                       Warrant
Shares.  The Warrant Shares have been
duly authorized and reserved for issuance upon exercise of the Warrants and
when so issued will be validly issued, fully paid and non-assessable.


 


Section 4(A).9.                                       Laws;
Regulations.  No provision of any
applicable law or regulation and no judgment, injunction, order or decree shall
prohibit the Closing or shall prohibit or restrict any Purchaser or its
Affiliates from owning the Notes or the Warrants in accordance with the terms
thereof and no lawsuit or other action or proceeding shall have been commenced
by a Governmental Authority seeking to effect any of the foregoing.


 


Section 4(A).10.                                Pre-emptive
Rights Offer.  On or prior to the
date of the Closing, the Company shall have made the pre-emptive rights offer
as required by its certificate of incorporation and the New York Business
Corporation Law to the holders of its Class B Common Stock.


 


Section 4(A).11.                                Notes and Warrants.  The Company shall have duly executed and
delivered the Notes and the Warrants in substantially the form attached hereto
as Exhibit 1 and Exhibit 2, respectively, to the
Purchasers or their designee(s).


 


Section 4(A).12.                                Registration
Rights Agreement.  The Company shall
have duly executed and delivered a Registration Rights Agreement (the “Registration Rights Agreement”) in
substantially the form attached hereto as Exhibit 3 to the
Purchasers or their designee(s).


 


4
















 


SECTION 4(B).                                   COMPANY’S
CONDITIONS TO CLOSING.


 


The obligation
of the Company to consummate the Closing is subject to the fulfillment (or
waiver by the Company) of each of the following conditions:


 


Section 4(B).1.               Representations and
Warranties.  The representations and
warranties of the Purchasers set forth in this Agreement shall be true and
correct in all material respects as though made on and as of the Closing (other
than representations and warranties that by their terms speak as of another
date, which representations and warranties shall be true and correct in all
material respects as of such date).


 


Section 4(B).2.               Purchasers’
Performance.  The Purchasers shall
have performed in all material respects all obligations required to be
performed by them under this Agreement at or prior to the Closing.


 


Section 4(B).3.               Pre-emptive Rights
Offer.  On or prior to the date of
the Closing, the Company shall have made the pre-emptive rights offer as
required by its certificate of incorporation and the New York Business
Corporation Law to the holders of its Class B Common Stock.


 


Section 4(B).4.               Tax Information.  At
the Closing, each Purchaser shall deliver to the Company, (A) in the case
of a Purchaser that is treated as a “United States person” for United States
federal income tax purposes (including any Purchaser that is treated for United
States federal income tax purposes as a disregarded entity the interests in
which are owned by a United States person), two properly completed copies of
United States Internal Revenue Service Forms W-9, or successor applicable form,
and (B) in the case of a Purchaser that is not treated as a “United States
person” for United States federal income tax purposes (a “Non-U.S. Purchaser”), either (1) in
the case of a Non-U.S. Purchaser claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of “portfolio interest”, United States Internal Revenue
Service Form W-8BEN, or applicable successor form (together with a certificate
representing that such Non-U.S. Purchaser is not a bank for purposes of Section 881(c) of
the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of
the Code) of the Company and is not a controlled foreign corporation related to
the Company (within the meaning of Section 864(d)(4) of the Code)),
or (2) Internal Revenue Service Form W-8BEN or Form W-8ECI, or
applicable successor forms, in each case properly completed and duly executed
by such Non-U.S. Purchaser claiming exemption from, or a reduction in the rate
of, U.S. federal withholding tax on payments by the Company under this
Agreement and the Notes.


 


SECTION 5.                                                    REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.


 


The Company
represents and warrants to each Purchaser that:


 


Section 5.1.  Existence; Qualification and Power.  The Company and each of its Significant
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is organized, and the Company and each of
its Significant Subsidiaries is duly qualified to transact business in all places
where such qualification is


 


5

















 


necessary,
except where failure to qualify would not have a Material Adverse Effect.  The Company’s certificate of incorporation,
as amended, and by-laws, copies of which are on file with the SEC, are true,
complete and correct copies of such documents as in full force and effect as of
the date hereof.


 


Section 5.2.  Authorization; No Contravention; Binding
Effect.  The
execution, delivery and performance by the Company of this Agreement, the
Registration Rights Agreement, the Notes and the Warrants are within the
Company’s corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene, subject to satisfaction of the
condition set forth in Section 4(B).3, on or prior to the
Closing:  (a) the Company’s
certificate of incorporation or by-laws or (b) any law or any contractual
restriction binding on or affecting the Company.  This Agreement is and the Registration Rights
Agreement and the Notes when delivered hereunder will be, legal, valid and
binding obligations of the Company enforceable against the Company 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.


 


Section 5.3.  Capitalization.  The
authorized capital stock of the Company, and the outstanding capital stock of
the Company (including securities convertible into, or exercisable or
exchangeable for, capital stock of the Company) as of the most recent fiscal
month-end preceding the date hereof (the “Capitalization
Date”) is set forth on Schedule 5.3.  The outstanding shares of capital stock of
the Company have been duly authorized and are validly issued and outstanding,
fully paid and non-assessable, and subject to no preemptive rights (and were
not issued in violation of any preemptive rights).  As of the date hereof, the Company does not
have outstanding any securities or other obligations providing the holder the
right to acquire common stock that is not reserved for issuance, and the Company
has not made any other commitment to authorize, issue or sell any common stock,
except as specified on Schedule 5.3.  Since the Capitalization Date, the Company
has not issued any shares of common stock, other than shares issued upon the
exercise of stock options or delivered under other equity-based awards or other
convertible securities or warrants which were issued and outstanding on the
Capitalization Date and disclosed on Schedule 5.3.


 


Section 5.4.  Warrants
and Warrant Shares.  Each
Warrant has been duly authorized and, when executed and delivered as
contemplated hereby, will constitute a valid and legally binding obligation of
the Company enforceable against the Company in accordance with its terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and general equitable principles, regardless of
whether such enforceability is considered in a proceeding at law or in
equity.  The Warrant Shares have been
duly authorized and reserved for issuance upon exercise of the Warrants and
when so issued in accordance with the terms of the Warrants will be validly
issued, fully paid and non-assessable.


 


Section 5.5.  Disclosure; No Material Adverse Effect.  This Agreement, including the exhibits and
schedules hereto (this Agreement and the Company’s SEC Filings being referred
to, collectively, as the “Disclosure
Documents”), taken as a whole, do not contain any untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which
they were made.  Except as


 


6

















 


disclosed in
the Disclosure Documents, including, without limitation, Schedule 5.5
hereto, since December 30, 2007, there has been no change in the financial
condition, operations, business or properties of the Company and its
Subsidiaries, taken as a whole, except changes that individually or in the
aggregate could not reasonably be expected to have a Material Adverse
Effect.  Since September 28, 2008,
there has been no fact, circumstance, event, change, occurrence, condition or
development that, either individually or in the aggregate, has or could
reasonably be expected to have a Material Adverse Effect that has not been set
forth in the Disclosure Documents.  The
Company has timely filed (subject to any permitted extension) the Company’s SEC
Filings and all other reports, registrations, documents, filings, statements
and submissions, together with any amendments thereto, that it was required to
file with any Governmental Authority, except, in the case of such other
reports, registrations, documents, filings, statements and submissions, where
the failure to do so would not reasonably be expected to have a Material
Adverse Effect.


 


Section 5.6.  Subsidiaries.  The Company’s SEC Filings and Schedule 5.6
set forth a complete and correct list of each Subsidiary that, as of the date
of this Agreement, constitutes a Consolidated Subsidiary and Schedule 5.6
sets forth a complete and current list of 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 Company are owned by the Company 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.


 


Section 5.7.  Financial Statements.  The financial statements included in the
Company’s SEC Filings (the “Financial
Statements”), fairly present in all material respects the
consolidated financial condition of the Company and its Consolidated
Subsidiaries as at the date thereof and the consolidated results of their operations
for the period ended on said date; and except as stated therein, such financial
statements (A) were prepared in conformity with GAAP applied on a
consistent basis, (B) have been prepared from, and are in accordance with,
the books and records of the Company and its Subsidiaries and (C) complied
as to form, as of their respective dates of filing with the SEC, in all
material respects with the applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto.  Except as disclosed in the Financial
Statements at and for the period ended September 28, 2008, on September 28,
2008, the Company and its Consolidated Subsidiaries did not have any contingent
liabilities or liabilities for taxes which are material to the Company and its
Consolidated Subsidiaries, taken as a whole.


 


Section 5.8.  Governmental Authorizations; Other Consents.  Other than the filing of any current report
on Form 8-K required to be filed with the SEC and such as have been
obtained or made, 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 Company of this
Agreement, or the issuance and sale of the Notes or the Warrants or the
issuance of Warrant Shares upon exercise of the Warrants, except for the
filings with the SEC and the New York Stock Exchange and any Regulatory
Approvals applicable to the holders of the Warrants’ exercise of their rights
hereunder, including with respect to the issuance of the Warrant Shares.


 


7

















 


Section 5.9.  Litigation.  There is no pending or, to the knowledge of
the Company, threatened, action or proceeding affecting the Company 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, any Note or any Warrant.


 


Section 5.10.  Taxes.  The Company and each of its Subsidiaries has
filed all material Tax returns required to be filed (taking into account any
and all extensions of filing due dates obtained by the Company 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 Financial
Statements or in Schedule 5.10 hereto, neither the Company nor any of
its Subsidiaries is a 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.


 


Section 5.11.  Ownership of Property; Liens.  Each of the Company and its Subsidiaries has
good title to all of its properties and assets reflected in the Financial
Statements (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 Company or its
Subsidiaries of such properties and assets in the normal course of business of
the Company and its Subsidiaries and non-material encumbrances valued in the
aggregate under $10,000,000.


 


Section 5.12.  ERISA. 
The Company 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
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 Company 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 within the last
three years incurred any material accumulated funding deficiency with respect
to any Pension Plan, whether or not waived, or any other material liability
under Title IV of ERISA in respect of any Pension Plan other than the
requirement to pay premiums to PBGC in the ordinary course and there are no
premium payments which are due and unpaid and do not reasonably expect to incur
any accumulated funding deficiency or other liability under Title IV of ERISA
(other than the obligation to pay premiums in the ordinary course) in respect
of the Plan year ending December 31, 2008, (e) have not 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


 


8

















 


completely or
partially withdrawing from any Multiemployer Plan, or as a result of the
reorganization or termination of any such Multiemployer Plan.  No “reportable event” (within the meaning of Section 4043(c) of
ERISA), other than a reportable event for which the notice period referred to
in Section 4043(c) of ERISA has been waived, has occurred in the
preceding three (3) years or is reasonably expected to occur.


 


Section 5.13.  Private Offering by the Company.  Neither the Company nor anyone acting on its
behalf has offered the Notes, the Warrants or any similar securities for sale
to, or solicited any offer to buy any of the same from, or otherwise approached
or negotiated in respect thereof with, any person other than the Purchasers
(other than the pre-emptive rights offering made or to be made in connection
herewith to the holders of Class B Common Stock of the Company), each of
which has been offered the Notes and the Warrants at a private sale for
investment.  Neither the Company nor
anyone acting on its behalf has taken, or will take, any action that would
subject the issuance or sale of the Notes or the Warrants to the registration
requirements of Section 5 of the Securities Act or to the registration
requirements of any securities or blue sky laws of any applicable jurisdiction.


 


Section 5.14.  Use of Proceeds; Margin Regulations.  The proceeds of the Notes and the Warrants
issued hereunder will be used for general corporate purposes, including,
without limitation, any act by the Company permitted by its certificate of
incorporation and applicable law and not otherwise prohibited by this
Agreement.  The Company 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 Note or any
Warrant will be used in a manner as would cause the transactions contemplated
hereby to violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System.  Following application of
the proceeds of each Note and each Warrant, not more than 25% of the value of
the assets (of the Company and its Consolidated Subsidiaries) will be margin
stock.


 


Section 5.15.  Investment Company Act of 1940.  Neither the Company nor any Subsidiary is
subject to regulation under the Investment Company Act of 1940, as amended.


 


Section 5.16.  Compliance with Laws.  Except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, the
Company and its Subsidiaries have all permits, licenses, franchises,
authorizations, orders and approvals of, and have made all filings,
applications and registrations with, Governmental Authorities that are required
in order to permit them to own or lease their properties and assets and to
carry on their business as presently conducted. 
The Company and the Company’s Subsidiaries have complied in all respects
and are not in default or violation of, and none of them is, to the knowledge
of the Company, under investigation with respect to or, to the knowledge of the
Company, have been threatened to be charged with or given notice of any
violation of, any applicable domestic (federal, state or local) or foreign law,
statute, ordinance, license, rule, regulation, policy or guideline, order,
demand, writ, injunction, decree or judgment of any Governmental Authority,
other than such noncompliance, defaults or violations that would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Except for statutory or regulatory restrictions of general
application, no Governmental Authority has placed any


 


9

















 


restriction on
the business or properties of the Company or any of its Subsidiaries that
would, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


Section 5.17.  Environmental Liability.  Except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect:  (i) there is no legal, administrative,
or other proceeding, claim or action of any nature seeking to impose, or that
would reasonably be expected to result in the imposition of, on the Company or
any of its Subsidiaries, any liability relating to the release of hazardous
substances as defined under any local, state or federal environmental statute,
regulation or ordinance, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, pending or, to the Company’s knowledge,
threatened against the Company or any of its Subsidiaries; (ii) to the
Company’s knowledge, there is no reasonable basis for any such proceeding,
claim or action; and (iii) neither the Company nor any of its Subsidiaries
is subject to any agreement, order, judgment or decree by or with any court,
Governmental Authority or third party imposing any such environmental
liability.


 


Section 5.18.  Insurance.  The Company and its Subsidiaries are insured
with reputable insurers against such risks and in such amounts as the
management of the Company has determined to be prudent and consistent with
industry practice.  The Company and its
Subsidiaries are in material compliance with their insurance policies and are
not in default under any of the material terms thereof, each such policy is
outstanding and in full force and effect, all premiums and other payments due
under any material policy have been paid, and all claims thereunder have been
filed in due and timely fashion, except, in each case, as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


 


Section 5.19.  Intellectual Property.  Except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (i) the
Company and each of its Subsidiaries owns or otherwise has the right to use,
all intellectual property rights, including all trademarks, trade dress, trade
names, service marks, domain names, patents, inventions, trade secrets,
know-how, works of authorship and copyrights therein, that are used in the
conduct of their existing businesses and all rights relating to the plans,
design and specifications of any of its branch facilities (the “Proprietary Rights”) free and clear of all
liens and any claims of ownership by current or former employees, contractors,
designers or others and (ii) neither the Company nor any of its
Subsidiaries is materially infringing, diluting, misappropriating or violating,
nor has the Company or any or its Subsidiaries received any written (or, to the
knowledge of the Company, oral) communications alleging that any of them has
materially infringed, diluted, misappropriated or violated, any of the
Proprietary Rights owned by any other person. 
Except as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, to the Company’s knowledge, no other
person is infringing, diluting, misappropriating or violating, nor has the
Company or any of the Company’s Subsidiaries sent any written communications
since December 31, 2007 alleging that any person has infringed, diluted,
misappropriated or violated, any of the Proprietary Rights owned by the Company
and the Company’s Subsidiaries.


 


Section 5.20.  Brokers and Finders.  No broker, finder or investment banker is
entitled to any financial advisory, brokerage, finder’s or other fee or
commission in connection with this Agreement or the Warrants or the
transactions contemplated hereby or thereby based upon


 


10

















 


arrangements
made by or on behalf of the Company or any of its Subsidiaries for which the
Purchasers could have any liability.


 


Section 5.21.
Anti-takeover Provisions.  The issuance and the exercise of the Warrants
in accordance with the terms of this Agreement and the issuance of shares upon
the exercise of the Warrants are not subject to any anti-takeover or similar
provisions of the Company’s certificate of incorporation and by-laws, and any
other provisions of any applicable “moratorium,” “control share,” “fair price,”
“interested stockholder,” or other anti-takeover laws and regulations of any
jurisdiction.


 


SECTION 6.                            REPRESENTATION
OF THE PURCHASERS.


 


Section 6.1.  Purchase for Investment.  Each Note Purchaser represents that it is
purchasing the Notes and each Warrant Purchaser represents that is purchasing
the Warrants, in each case, for its own account or for one or more separate
accounts maintained by such Purchaser or for the account of one or more trust
funds and not with a view to the distribution thereof, provided that the disposition of such
Purchaser’s or their property shall at all times be within such Purchaser’s or
their control, subject to Section 13.4 hereof.  Each Purchaser understands that the Notes and
the Warrants have not been registered under the Securities Act and may be
resold only if registered pursuant to the provisions of the Securities Act or
if an exemption from registration is available, except under circumstances
where neither such registration nor such an exemption is required by law.


 


SECTION 7.                            INFORMATION
AS TO COMPANY.


 


Section 7.1.  Financial and Business Information.  The Company shall deliver to each holder of
Notes:


 


(a)                                  Quarterly Statements — within 60 days
after the end of each quarterly fiscal period in each fiscal year of the
Company (other than the last quarterly fiscal period of each such fiscal year),
duplicate copies of,


 


(i)                                     a
consolidated balance sheet of the Company and its Subsidiaries as at the end of
such quarter, and


 


(ii)                                  consolidated
statements of income, changes in shareholders’ equity and cash flows of the
Company and its Subsidiaries, for such quarter and (in the case of the second
and third quarters) for the portion of the fiscal year ending with such
quarter,


 


setting forth
in each case in comparative form the figures for the corresponding periods in
the previous fiscal year, all in reasonable detail, prepared in accordance with
GAAP applicable to quarterly financial statements generally, and certified by a
Senior Financial Officer as fairly presenting, in all material respects, the
financial position of the companies being reported on and their results of
operations and cash flows, subject to changes resulting from year-end
adjustments, provided that
delivery within the time period specified above of copies of the Company’s
Quarterly Report on Form 10-Q (the “Form 10-Q”)
prepared in compliance with the requirements therefor and filed with the SEC
shall be deemed to satisfy the requirements of this Section 7.1(a),
provided, further, that the Company shall be deemed
to have made such delivery


 


11

















 


of such Form 10-Q
if it shall have timely made such Form 10-Q available on “EDGAR”, or any
successor thereto, or on its home page on the worldwide web (such
availability being referred to as “Electronic
Delivery”);


 


(b)                                 Annual Statements — within 120 days after
the end of each fiscal year of the Company, duplicate copies of


 


(i)                                     a
consolidated balance sheet of the Company and its Subsidiaries as at the end of
such year, and


 


(ii)                                  consolidated
statements of income, changes in shareholders’ equity and cash flows of the
Company and its Subsidiaries for such year,


 


setting forth
in each case in comparative form the figures for the previous fiscal year, all
in reasonable detail, prepared in accordance with GAAP, and accompanied by an
opinion thereon of independent public accountants of recognized national
standing, which opinion shall state that such financial statements present
fairly, in all material respects, the financial position of the companies being
reported upon and their results of operations and cash flows and have been
prepared in conformity with GAAP, and that the examination of such accountants
in connection with such financial statements has been made in accordance with
generally accepted auditing standards, and that such audit provides a
reasonable basis for such opinion in the circumstances, provided that the delivery of the Company’s
Annual Report on Form 10-K (the “Form 10-K”)
for such fiscal year prepared in accordance with the requirements therefor and
filed with the SEC, shall be deemed to satisfy the requirements of this Section 7.1(b),
provided, further, that the Company shall be deemed
to have made such delivery of such Form 10-K if it shall have timely made
Electronic Delivery thereof;


 


(c)                                  SEC and Other Reports — promptly upon
their becoming available, one copy of (i) each financial statement,
report, notice or proxy statement sent by the Company or any Subsidiary to its
principal lending banks as a whole (excluding information sent to such banks in
the ordinary course of administration of a bank facility, such as information
relating to pricing and borrowing availability) or to its public securities
holders generally, and (ii) each regular or periodic report, each
registration statement (without exhibits except as expressly requested by such holder),
and each prospectus and all amendments thereto filed by the Company or any
Subsidiary with the SEC and of all press releases and other statements made
available generally by the Company or any Subsidiary to the public concerning
developments that are Material (collectively the “Provided Reports”); provided,
that the Company shall be deemed to have made delivery of the items described
in clause (ii) above if it shall have timely made Electronic Delivery
thereof,


 


(d)                                 Notice of Default or Event of Default —
promptly, and in any event within five days after a Responsible Officer
becoming aware of the existence of any Default or Event of Default or that any
Person has given any notice or taken any action with respect to a claimed
default hereunder or that any Person has given any notice or taken any action
with respect to a claimed default of the type referred to in Section 11(f),
a written notice specifying the nature and


 


12

















 


period of
existence thereof and what action the Company is taking or proposes to take
with respect thereto;


 


(e)                                  ERISA Matters — promptly, and in any event
within five days after a Responsible Officer becoming aware of any of the
following, a written notice setting forth the nature thereof and the action, if
any, that the Company or an ERISA Affiliate proposes to take with respect
thereto:


 


(i)                                     with
respect to any Plan, any reportable event, as defined in section 4043(c) of
ERISA and the regulations thereunder, for which notice thereof has not been
waived pursuant to such regulations as in effect on the date hereof; or


 


(ii)                                  the
taking by the PBGC of steps to institute, or the threatening by the PBGC of the
institution of, proceedings under section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from a Multi-employer
Plan that such action has been taken by the PBGC with respect to such
Multi-employer Plan; or


 


(iii)                               any
event, transaction or condition that could result in the incurrence of any
liability by the Company or any ERISA Affiliate pursuant to Title I or IV of
ERISA or the penalty or excise tax provisions of the Code relating to employee
benefit plans, or in the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate pursuant to Title I
or IV of ERISA or such penalty or excise tax provisions, if such liability or
Lien, taken together with any other such liabilities or Liens then existing,
would reasonably be expected to have a Material Adverse Effect;


 


(f)                                    Notices from Governmental Authority —
promptly, and in any event within 30 days of receipt thereof, copies of any
notice to the Company or any Subsidiary from any Federal or state Governmental
Authority relating to any order, ruling, statute or other law or regulation
that would reasonably be expected to have a Material Adverse Effect; and


 


(g)                                 Requested Information — with reasonable
promptness, such other data and information relating to the business,
operations, affairs, financial condition, assets or properties of the Company
and its Subsidiaries (including, but without limitation, actual copies of the
Company’s Form 10-Q and Form 10-K and other Provided Reports) or
relating to the ability of the Company to perform its obligations hereunder and
under the Notes and the Warrants as from time to time may be reasonably
requested by any such holder of Notes and/or Warrants, as applicable.


 


Section 7.2.  Officer’s Certificate.  Each set of financial statements delivered to
a holder of Notes pursuant to Section 7.1(a) or Section 7.1(b) shall
be accompanied by a certificate of a Senior Financial Officer setting forth
(which, in the case of Electronic Delivery of any such financial statements,
shall be by separate concurrent delivery of such certificate to each holder of
Notes) a statement that such Senior Financial Officer has reviewed the relevant
terms hereof and has made, or caused to be made, under his or her supervision,
a review of the transactions and conditions of the Company and its Subsidiaries
from the beginning of the quarterly or annual period covered by the statements
then being furnished to the date of the certificate and that such


 


13

















 


review shall
not have disclosed the existence during such period of any condition or event
that constitutes a Default or an Event of Default or, if any such condition or
event existed or exists, specifying the nature and period of existence thereof
and what action the Company shall have taken or proposes to take with respect
thereto.


 


Section 7.3.  Visitation.  The Company shall permit the representatives
of the Purchasers or any Affiliates thereof, and each other holder of Notes in
excess of $50,000,000 in principal amount:


 


(a)                                  No Default — if no Default or Event of
Default then exists, at the expense of such holder and upon reasonable prior
notice to the Company, to visit the principal executive office of the Company,
to discuss the affairs, finances and accounts of the Company and its
Subsidiaries with the Company’s officers, and (with the consent of the Company,
which consent will not be unreasonably withheld, and in the presence of the
Company) its independent public accountants, and (with the consent of the
Company, which consent will not be unreasonably withheld) to visit the other
offices and properties of the Company and each Subsidiary, all at such
reasonable times and as often as may be reasonably requested in writing; and


 


(b)                                 Default — if a Default or Event of Default
then exists, at the expense of the Company, to visit and inspect any of the
offices or properties of the Company or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to make copies
and extracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective officers and independent public accountants (and
by this provision the Company authorizes said accountants to discuss the
affairs, finances and accounts of the Company and its Subsidiaries), all at
such times and as often as may be requested.


 


SECTION 8.                            PAYMENT
AND PREPAYMENT OF THE NOTES.


 


Section 8.1.  Maturity.  As provided therein, the entire unpaid
principal balance of the Notes shall be due and payable on the stated maturity
date thereof.


 


Section 8.2.  Optional Prepayments with Make-Whole Premium
Amount or Applicable Prepayment Premium.  (a)  At any time prior to January 15,
2012, the Company may, at its option, upon irrevocable notice as provided
below, prepay at any time all, or from time to time any part of, the Notes, by
paying the Make-Whole Premium Amount determined for the prepayment date with
respect to such principal amount; provided, that
if a notice of prepayment is delivered in connection with a conditional
refinancing, then such notice of prepayment may be revoked in writing up to
five (5) Business Days before the scheduled prepayment date if such
refinancing is not consummated.  The
Company will give each holder of Notes written notice of each optional
prepayment under this Section 8.2(a) not less than thirty (30)
days and not more than sixty (60) days prior to the date fixed for such
prepayment.  Each such notice shall
specify such date (which shall be a Business Day), the aggregate principal
amount of the Notes to be prepaid on such date, the principal amount of each
Note held by such holder to be prepaid (determined in accordance with Section 8.6),
and the interest to be paid on the prepayment date with respect to such
principal amount being prepaid, and shall be accompanied by a certificate of a
Senior Financial Officer as to the estimated Make-Whole Premium Amount due in
connection with such prepayment (calculated as if the date of such


 


14
















 


notice were
the date of the prepayment), setting forth the details of such
computation.  Two (2) Business Days
prior to such prepayment, the Company shall deliver to each holder of Notes a
certificate of a Senior Financial Officer specifying the calculation of such
Make-Whole Premium Amount as of the specified prepayment date.


 


(b)                                 At
any time on or after January 15, 2012, the Company may, at its option,
upon irrevocable notice as provided below, prepay at any time all, or from time
to time any part of, the Notes at the Applicable Prepayment Premium determined
for the prepayment date with respect to such principal amount; provided, that if a notice of prepayment
is delivered in connection with a conditional refinancing, then such notice of
prepayment may be revoked in writing up to five (5) Business Days before
the scheduled prepayment date if such refinancing is not consummated.  The Company will give each holder of Notes
written notice of each optional prepayment under this Section 8.2(b) not
less than thirty (30) days and not more than sixty (60) days prior to the date
fixed for such prepayment.  Each such
notice shall specify such date (which shall be a Business Day), the aggregate
principal amount of the Notes to be prepaid on such date, the principal amount
of each Note held by such holder to be prepaid (determined in accordance with Section 8.6),
the interest to be paid on the prepayment date with respect to such principal
amount being prepaid, and the Applicable Prepayment Premium due in connection
with such prepayment.


 


Section 8.3.  Mandatory Offer to Prepay in Event of Change
of Control.


 


(a)                                  In
the event of the occurrence of a Change of Control, the Company shall deliver
to each holder of a Note a Section 8.3 Notice and Offer to Prepay pursuant
to Section 8.3(b).  Any
prepayment of Notes pursuant to this Section 8.3 shall be made at a
prepayment price equal to the Change of Control Offer Amount, together with
interest accrued thereon to the date of prepayment.


 


(b)                                 Not
later than thirty (30) days and not more than sixty (60) days prior to a Change
of Control, the Company shall give written notice to each holder of a Note that
the Company anticipates a Change of Control and of such holder’s right to elect
to be prepaid hereunder arising as a result thereof (a “Section 8.3 Notice and Offer to Prepay”).  Such Section 8.3 Notice and Offer to
Prepay shall state:  (i) that such
notice is delivered pursuant to this Section 8.3(b); (ii) the
proposed date of and a description of the circumstances surrounding such Change
of Control; (iii) the date by which a holder must deliver a Section 8.3(c) Response
pursuant to Section 8.3(c) hereof in order to accept
prepayment; and (iv) the date on which the Company expects to prepay the
Notes pursuant to Section 8.3(c), which prepayment date shall be
the date of the occurrence of a Change of Control (the “Section 8.3 Special Prepayment Date”).  No failure by the Company to deliver a Section 8.3
Notice and Offer to Prepay to any holder shall limit such holder’s right to
exercise such election and require the Company to effect such prepayment within
a reasonable time period after such holder becomes aware of such Change of
Control.


 


(c)                                  To
accept prepayment pursuant to this Section 8.3 of the Notes held by
it, a holder shall deliver to the Company such holder’s notice that it accepts
prepayment pursuant to this Section 8.3 with respect to the Notes
held by it and designated therein (a “Section 8.3(c) Response”).  Such Section 8.3(c) Response shall
be delivered to the Company on or before the


 


15

















 


tenth (10th)
day prior to the Section 8.3 Special Prepayment Date.  The Section 8.3(c) Response shall
set forth the name of such holder and the statement that it accepts prepayment
pursuant to this Section 8.3 with respect to the Notes designated
therein.  Promptly and in any event
within three (3) Business Days after receipt of a holder’s Section 8.3(c) Response,
the Company shall, by written notice to such holder of a Note, acknowledge
receipt thereof.  Subject to the last
sentence of Section 8.3(b), a failure by a holder to respond to an
offer to prepay made pursuant to this Section 8.3 shall be deemed
to constitute a rejection of such offer by such holder.


 


(d)                                 The
obligation of the Company to prepay Notes pursuant to the offers required by Section 8.3(b) and
their acceptance in accordance with Section 8.3(c) is subject
to the occurrence of the Change of Control in respect of which such offers and
acceptances shall have been made.  In the
event that such Change of Control does not occur on the Section 8.3
Special Prepayment Date in respect thereof, the prepayment shall be deferred
until, and shall be made on, the date on which such Change of Control actually
occurs; provided, that each
holder that delivered a Section 8.3(c) Response shall be entitled to
rescind its acceptance at any time in writing up to two (2) Business Days
before the Change of Control occurs if such date is extended by more than five (5) Business
Days.  To the extent practicable, the
Company shall keep each holder reasonably and timely informed of (i) any
such deferral of the date of prepayment, (ii) the date on which such
Change of Control and the prepayment are expected to occur, and (iii) any
determination by the Company that efforts to effect such Change of Control have
ceased or been abandoned (in which case the offers and acceptances made
pursuant to this Section 8.3 in respect of such Change of Control
shall be deemed rescinded).  In the event
that such Change of Control does not occur on the Section 8.3 Special
Prepayment Date or within ninety (90) days thereafter, the Company shall not
permit any Change of Control to occur unless it delivers a new Section 8.3
Notice and Offer to Prepay and otherwise complies anew with the provisions of
this Section 8.3.


 


(e)                                  For
the avoidance of doubt, in the event of a Change of Control, no Applicable
Prepayment Premium or Make-Whole Premium Amount shall be payable on the date on
which such Change of Control occurs.


 


(f)                                    “Change of Control” means the earliest to
occur of:  (i) at any time the
Permitted Holders cease to own, at such time, in the aggregate, directly or
indirectly, beneficially and of record, at least the majority of the then
outstanding Class B Common Stock (or any successor class of common stock
with comparable voting rights or in the event no such class exists, the common
shares with voting rights); (ii) at any time the Permitted Holders shall
cease to have, at such time, the right or the ability by voting power, contract
or otherwise to elect or designate for election at least a majority of the
board of directors of the Company; or (iii) any “Change of Control” (or
any comparable term) under any senior indebtedness of the Company.  “Permitted
Holders” shall mean any descendant (or any spouse thereof) of
Iphigene Ochs Sulzberger (the “Family Members”)
or any beneficiary or trustee (as the same may change from time to time) of a
trust over 50% of the individual beneficiaries of which are Family Members (a “Family Trust”).


 


Section 8.4.  Prepayments Upon Exercise of Warrants.  Upon any exercise of the Warrants by any
holder thereof for cash in accordance with the terms of the Warrants, the
Company may elect, but shall not be required, to apply up to one-hundred percent
(100%) of the


 


16

















 


gross cash proceeds received from each such
exercise to prepay the Notes at par value together with the interest accrued
thereon to the date of prepayment, pursuant to the provisions of this Section 8.4.  The Company will give each holder of the
Notes prompt written notice of its election to prepay the Notes with such gross
cash proceeds.  Each such notice shall
specify such date (which shall be a Business Day and no more than ten (10) Business
Days following the receipt of such proceeds), the aggregate principal amount of
the Notes to be prepaid on such date, which amount shall, in no event be less
than $1,000,000, and the principal amount of each Note held by such holder to
be prepaid (determined in accordance with Section 8.6).  From the date of each such prepayment in
accordance with this Section 8.4, no further interest shall accrue
or be owing with respect to such principal amount of the Notes being prepaid.


 


Section 8.5.  Prepayments Upon a Change in Tax Law.  Notwithstanding anything in this Agreement to
the contrary, if, at any time after the date of this Agreement, a change in
applicable law results in the Company being responsible for payments to the
holders of the Notes of amounts  under
the second sentence of Section 14.3 hereof, the Company may elect
to prepay the Notes at par value together with the interest accrued thereon to
the date of prepayment, without premium or penalty.  The Company will give each holder of the
Notes prompt written notice of its election to prepay the Notes upon such a
change in law.  Each such notice shall
specify the prepayment date (which shall be a Business Day at least twenty (20)
Business Days after the date of such Notice), the aggregate principal amount of
the Notes to be prepaid on such date, and the principal amount of each Note
held by such holder to be prepaid (determined in accordance with Section 8.6).  From the date of each such voluntary
prepayment in accordance with this Section 8.5, no further interest
shall accrue or be owing with respect to such principal amount of the Notes
being prepaid.  Notwithstanding the
foregoing, the Company shall not be entitled pursuant to this Section 8.5
to prepay the Notes of any holder who, within five (5) Business Days of
receipt of the notice referred to above, shall agree with the Company in
writing (on behalf of itself and any successor holder of its Notes) that
payments with respect to such Notes shall, without any increase in payment, be
subject to withholding and deduction on account of such change in applicable
law or regulation, including any applicable tax treaties, or any interpretation
thereof; provided that the provisions of this Section 8.5 and the
second sentence of Section 14.3 shall apply to any subsequent
change in applicable law.


 


Section 8.6.
Allocation of Partial Prepayments.  In the case of each partial prepayment of the
Notes, the principal amount of the Notes to be prepaid shall be allocated among
all of the Notes at the time outstanding in proportion, as nearly as
practicable, to the respective unpaid principal amounts thereof not theretofore
called for prepayment.


 


Section 8.7.  Maturity; Surrender, Etc.  In the case of each prepayment of Notes
pursuant to this Section 8, the principal amount of each Note to be
prepaid shall mature and become due and payable on the date fixed for such
prepayment (which shall be a Business Day), together with interest on such
principal amount accrued to such date, at the prepayment amount specified herein
(the applicable Make-Whole Premium Amount plus the outstanding principal
amount, the Change of Control Offer Amount or the Applicable Prepayment
Premium, as applicable).  From and after
such date, unless the Company shall fail to pay such prepayment amount when so
due and payable, as aforesaid, interest on such principal amount shall cease to
accrue.  Any Note paid or prepaid in full
shall be surrendered to the Company and cancelled and


 


17

















 


shall not be reissued, and no Note shall be
issued in lieu of any prepaid principal amount of any Note.


 


SECTION 9(A).                                   GENERAL
AFFIRMATIVE COVENANTS.


 


Section 9(A).1.  Consummation of Purchase.  Subject to the terms and conditions of this
Agreement, each of the parties will use its commercially reasonable efforts in
good faith to take, or cause to be taken, all actions, and to do, or cause to
be done, all things necessary, proper or desirable, or advisable under
applicable laws, so as to permit the issuance and sale of the Notes and the
Warrants as promptly as practicable and otherwise to enable consummation of the
transactions contemplated hereby and shall use commercially reasonable efforts
to cooperate with the other party to that end.


 


Section 9(A).2.  Expenses.  Unless otherwise provided in this Agreement
or the Warrants, each of the parties hereto will bear and pay all costs and
expenses incurred by it or on its behalf in connection with the transactions
contemplated under this Agreement or the Warrants, including fees and expenses
of its own financial or other consultants, investment bankers, accountants and
counsel.


 


SECTION 9(B).                                   COMPANY
AFFIRMATIVE COVENANTS.


 


The Company
covenants, for the benefit of the Purchasers and the holders of the Notes and
the Warrants, that so long as any of the Notes or the Warrants are outstanding:


 


Section 9(B).1.  Existence.  Subject
to Section 10.4, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided,
however, that the Company shall
not be required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company or the loss thereof is not
disadvantageous in any material respect to the holders of the Notes.


 


Section 9(B).2.  Maintenance of Properties.  The Company will cause all properties
material to the conduct of the business of the Company and its Subsidiaries,
taken as a whole, to be maintained and kept in such condition, repair and
working order as is necessary for the use thereof in the ordinary course
(normal wear and tear excepted) and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as
in the judgment of the Company may be necessary so that the business carried on
in connection therewith may be properly conducted at all times; provided, however,
that nothing in this Section 9(B).2 shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
the business of the Company and its Subsidiaries, taken as a whole, or not
disadvantageous in any material respect to the holders of the Notes.


 


Section 9(B).3.  Payment of Taxes and Claims.  The Company will pay or discharge or cause to
be paid or discharged, before the same shall become delinquent, (i) all
material taxes, assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary, and (ii) all material lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien


 


18

















 


upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings or where the failure to pay
or discharge would not have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole.


 


Section 9(B).4.  Sufficiency of Authorized Common Stock;
Exchange Listing. 
During the period from the Closing until the date on which the Warrants
have been fully exercised, the Company shall at all times have reserved for
issuance, free of preemptive or similar rights, a sufficient number of
authorized and unissued Warrant Shares to effectuate such exercise.  Nothing in this Section 9(B).4
shall preclude the Company from satisfying its obligations in respect of the
exercise of the Warrants by delivery of shares of Class A Common Stock
which are held in the treasury of the Company. 
As soon as reasonably practicable following the Closing, the Company
shall, at its expense, cause the Warrant Shares to be listed on the same
national securities exchange on which the Class A Common Stock is listed,
subject to official notice of issuance, and shall maintain such listing for so
long as any Class A Common Stock is listed on such exchange.


 


Section 9(B).5.  Certain Notifications Until Closing.  From the date hereof until the Closing, the
Company shall promptly notify the Purchasers of (i) any fact, event or
circumstance of which it is aware and which would reasonably be expected to
cause any representation or warranty of the Company contained in this Agreement
to be untrue or inaccurate in any material respect or to cause any covenant or
agreement of the Company contained in this Agreement not to be complied with or
satisfied in any material respect and (ii) except as provided in the
Disclosure Documents, any fact, circumstance, event, change, occurrence,
condition or development of which the Company is aware and which, individually
or in the aggregate, has had or would reasonably be expected to have a Material
Adverse Effect; provided, however, that delivery of any notice
pursuant to this Section 9(B).5 shall not limit or affect any
rights of or remedies available to the Purchasers.


 


Section 9(B).6.  Foreign Ownership.  The Company will not
knowingly take any action that would unreasonably interfere with or delay the
Purchaser’s ability to exercise the Warrants as a result of any limitation on
foreign ownership applicable to the Company or any of its Subsidiaries.


 


SECTION 10.                                             NEGATIVE
COVENANTS.


 


The Company
covenants, for the sole benefit of the Note Purchasers and the holders of the
Notes, that so long as any of the Notes are outstanding:


 


Section 10.1.  Liens.  The Company will not, and will not permit any
Significant Subsidiary to 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; provided,
that the Company or any of its Significant Subsidiaries may create or suffer to
exist


 


19

















 


any Liens otherwise prohibited above so long
as the aggregate principal amount of Indebtedness and obligations secured
thereby, including any Attributable Indebtedness Incurred pursuant to Section 10.3
hereof, shall not exceed 25% of Stockholders’ Equity minus the amount of any
Restricted Guaranties (which shall be calculated as the principal amount of
Indebtedness guaranteed by the Company or any of its Significant Subsidiaries).


 


Section 10.2.  Incurrence of Indebtedness and Issuance of
Disqualified Capital Stock.


 


(a)                                  The
Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, create, incur, issue, assume, Guarantee or otherwise become
directly or indirectly liable, contingently or otherwise (including by
operation of law), with respect to (collectively, “Incur”) (i) Indebtedness (including Acquired Indebtedness
and Attributable Indebtedness) that is senior in right of payment (to any
extent) to the Notes or (ii) Indebtedness (including Acquired Indebtedness
and Attributable Indebtedness) that is pari passu, subordinate or junior
in right of payment (to any extent) to any Indebtedness of the Company or a
Subsidiary unless (x) such Indebtedness is incurred after March 31,
2010 and (y) immediately after the Incurrence of such Indebtedness the
Fixed Charge Coverage Ratio for the most recent four full fiscal quarter
periods for which internal financial statements are available is at least 2.75
to 1.00 (the test set forth in the foregoing clause (ii) is referred to
herein as the “Coverage Ratio Test”).


 


For the
purpose of the Coverage Ratio Test, with respect to any period in which an
issuance, an investment, an Incurrence, an Asset Sale, an acquisition of
properties or assets, a Refinancing of Indebtedness or a repayment of
Indebtedness has occurred (each a “Subject
Transaction”), EBITDA and the components of Consolidated Interest
Expense shall be calculated with respect to such period on a pro forma basis
determined in good faith to reflect such subject transaction using the
historical financial statements (that shall be audited, if available) of any
business so acquired or to be acquired or to be sold and the consolidated
financial statements of the Company and its Subsidiaries that shall be
reformulated as if such Subject Transaction, and any Indebtedness incurred or
repaid in connection therewith, had been consummated, incurred or repaid at the
beginning of such period.


 


(b)                                 The
restrictions on Incurring Indebtedness under clause (a) shall not apply
to:


 


(A)                              the
Incurrence by the Company and its Subsidiaries of Indebtedness arising under
the Existing Credit Agreements, up to the aggregate amount of the Total
Commitments, reduced by the amount of any permanent reduction of the Existing
Credit Agreements’ commitments in connection with the application of the Net
Proceeds of any Asset Sale pursuant to Section 10.5(b)(i);


 


(B)                                the
Incurrence by the Company and its Subsidiaries of the Existing Indebtedness as
of Closing Date set forth on Schedule 10.2(b)(B) hereof or any Permitted
Refinancing Indebtedness in respect thereof;


 


(C)                                the
Incurrence by the Company and its Subsidiaries of Permitted Refinancing
Indebtedness in respect of Indebtedness Incurred pursuant to Section 10.2(a);


 


20

















 


(D)                               the
Incurrence by the Company of the Indebtedness represented by the Notes,
including any increase of the principal amount outstanding under the Notes as a
result of capitalized interest in accordance with the terms hereof or of any
Note;


 


(E)                                 the
Incurrence by the Company or any of its Subsidiaries of intercompany Indebtedness
incurred pursuant to this clause (E) between or among the Company and any
of its Subsidiaries provided, however, that any sale or other transfer
of any such Indebtedness to a Person other than the Company or a Subsidiary
shall be deemed, in each case, to constitute an Incurrence of such Indebtedness
by the Company or such Subsidiary, as the case may be, not permitted by this
clause (E);


 


(F)                                 the
Incurrence by the Company or any of its Subsidiaries of Indebtedness arising
from the honoring by a bank or other financial institution of a check, draft or
similar instrument inadvertently (except in the case of daylight overdrafts)
drawn against insufficient funds;


 


(G)                                the
Incurrence by the Company or any of its Subsidiaries of Indebtedness in respect
of performance bonds, bankers’ acceptances, letters of credit, workers’
compensation claims, surety or appeal bonds, payment obligations in connection
with self-insurance or similar obligations Incurred in the ordinary course of
business;


 


(H)                               the
Guarantee by the Company or any of its Subsidiaries of Indebtedness of the
Company or a Subsidiary that was permitted to be Incurred by another provision
of  this Section 10.2;


 


(I)                                    Indebtedness
represented by Restricted Guaranties in place as of the Closing Date set forth
on Schedule 10.2(b)(I) hereof and any extensions, renewals and
modifications thereof that do not increase the principal amount guaranteed; and


 


(J)                                   other
Indebtedness in a principal amount outstanding at any time not to exceed
$20,000,000.


 


(c)                                  For
purposes of determining compliance with this Section 10.2, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Indebtedness described in clauses (A) through (I) of
the immediately preceding paragraph, the Company shall, in its sole discretion,
classify (or later reclassify) such item of Indebtedness in any manner that
complies with this Section 10.2 and (except as otherwise provided
in the definition of the Total Commitments with respect to Section 10.2(b)(A))
will only be required to include the amount and type of such Indebtedness in
one of such clauses of Section 10.2(b).


 


Accrual of
interest, the accretion of accreted value, the payment of interest in the form
of additional Indebtedness, accretion of original issue discount, and increases
in the amount of Indebtedness outstanding solely as a result of fluctuations in
the exchange rate of currencies will not be deemed to be an Incurrence of
Indebtedness for purposes of this Section 10.2.  Guarantees of, or obligations in respect of
letters of credit relating to, Indebtedness which is otherwise included in the
determination of a particular amount of Indebtedness shall not be included in
the determination of such amount of Indebtedness; provided that the incurrence of
the Indebtedness being guaranteed was otherwise permitted hereunder.


 


21
















 


Section 10.3.  Limitations on Sales and Leasebacks.  The Company will not, and will not permit any
Subsidiary to, enter into any arrangement with any bank, insurance company or
other lender or investor (not including the Company or any Subsidiary), or to which
any such lender or investor is a party, providing for the leasing by the
Company or a Subsidiary of any property owned by the Company or a Subsidiary
and that has been or is to be sold or transferred by the Company or a
Subsidiary to such lender or investor or to any person to whom funds have been
or are to be advanced by such lender or investor on the security of such
property (each, a “Sale and Leaseback
Transaction”) unless the Company or such Subsidiary would be
entitled to issue, assume or guarantee Indebtedness secured by the property
involved at least equal in amount to the Attributable Indebtedness in respect
of such transaction without violating Section 10.1 and Section 10.2
of this Agreement, provided that
such Attributable Indebtedness shall thereupon be deemed to be Indebtedness
secured by Liens subject to the provisions of Section 10.1 hereof.


 


Section 10.4.  Dispositions of Assets; Consolidation or
Mergers.  The
Company shall not consolidate with or merge into any other Person or convey, transfer
or lease its properties and assets substantially as an entirety to any Person,
and the Company shall not permit any Person to consolidate with or merge into
the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:


 


(1) in
case the Company shall consolidate with or merge into another Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substantially as an entirety shall be
a corporation, partnership or trust, shall be organized and validly existing under
the laws of the United States, any State thereof or the District of Columbia
and shall expressly assume, the due and punctual payment of the principal of
and any premium and interest on all the Notes and the performance or observance
of every covenant of this Agreement on the part of the Company to be performed
or observed;


 


(2) immediately
after giving effect to such transaction and treating any Indebtedness which
becomes an obligation of the Company or any Subsidiary as a result of such
transaction as having been incurred by the Company or such Subsidiary at the
time of such transaction, no Event of Default, and no event which, after notice
or lapse of time or both, would become an Event of Default, shall have occurred
and be continuing and the Company would be able to Incur an additional $1.00 of
Indebtedness pursuant to the Coverage Ratio Test set forth in Section 10.2(a);
and


 


(3) if,
as a result of any such consolidation or merger or such conveyance, transfer or
lease, properties or assets of the Company would become subject to a Lien,
which would not be permitted by this Agreement, the Company or such successor
Person, as the case may be, shall take such


 


22

















 


steps as shall
be necessary effectively to secure the Notes equally and ratably with (or prior
to) all Indebtedness secured thereby.


 


Section 10.5.  Asset Sales.  (a)  The Company will not, and will not
permit any of its Subsidiaries to, consummate directly or indirectly an Asset
Sale, unless:


 


(1)                                  the
Company or such Subsidiary, as the case may be, receives consideration at the
time of such Asset Sale at least equal to the fair market value of the assets
sold or otherwise disposed of; provided,
however, that the foregoing shall
not apply to (x) any Asset Sale by Northern SC Paper Corporation or (y) Asset
Sales consisting of the disposition, sale or exchange of capital stock held by
the Company or any of its Subsidiaries in any person other than a Subsidiary if
neither the Company nor any of its Subsidiaries has the right under contract or
applicable law to prevent such disposition, sale or exchange (a “Mandatory Sale”); and


 


(2)                                  at
least 75.0% of the consideration therefor received by the Company or such
Subsidiary, as the case may be, is in the form of cash or cash equivalents, provided, however,
that the foregoing shall not apply to (x) Asset Sales by Northern SC Paper
Corporation, (y) Mandatory Sales and (z) the concurrent purchase and
sale or exchange of assets substantially in the line of business conducted by
the Company as of the Closing Date or any business reasonably related or
ancillary thereto or a combination of such business assets and cash equivalents
between the Company or any of its Subsidiaries and another Person, provided
that the sum of cash and cash equivalents received in connection with a
transaction described in (x), (y) or (z) shall be considered Net
Proceeds subject to this Section 10.5.


 


(b)                                 Within
360 days after the receipt of any Net Proceeds of any Asset Sale, the
Company or such Subsidiary, at its option, may apply or cause to be applied the
Net Proceeds from such Asset Sale:


 


(1)                                  to
repay outstanding senior Indebtedness and permanently reduce the commitments
with respect thereto without Permitted Refinancing Indebtedness; or


 


(2)                                  to
make (a) an investment in any one or more similar businesses, (b) an
acquisition of properties, (c) capital expenditures, or (d) acquisitions
of other assets, that, in each case, are used or useful in the Company’s
business or replace the businesses, properties and/or assets that are the
subject of such Asset Sale.


 


(c)                                  Any
Net Proceeds from an Asset Sale that are not invested or applied as provided
and within the time period set forth in Section 10.5(b) hereof
will be deemed to constitute “Excess Proceeds.”  When the aggregate amount of Excess Proceeds
exceeds $10 million, the Company shall make an offer to all holders of the
Notes and, if required by the terms of any Indebtedness that is pari  passu  with the Notes (“Pari Passu Indebtedness”), to the holders
of such Pari Passu Indebtedness (an “Asset
Sale Offer”), to purchase the maximum aggregate principal amount of
the Notes and such Pari Passu Indebtedness that may be purchased out of the
Excess Proceeds at an offer price in cash in an amount equal to 100.0% of the
principal amount


 


23

















 


thereof (the “Asset Sale Amount”), plus accrued and
unpaid interest, if any, to the date fixed for the closing of such offer.


 


(d)                                 The
Company will commence an Asset Sale Offer within ten Business Days after the
date on which the aggregate amount of Excess Proceeds exceeds $10 million
by delivering the notice in accordance with clause (e) below.  The Company may satisfy the foregoing
obligations with respect to any Net Proceeds from an Asset Sale by making an
Asset Sale Offer with respect to such Net Proceeds prior to the expiration of
the relevant 360-day period or with respect to Excess Proceeds of
$10 million or less.


 


(e)                                  Each
notice of an Asset Sale Offer will be mailed first class, postage prepaid, to
the holders of the Notes at such time. 
Each notice of an Asset Sale Offer shall state, among other things, the
purchase date, which must be no earlier than thirty (30) days nor later than
sixty (60) days from the date the notice is mailed, other than as may be
required by law (the “Asset Sale Offer
Payment Date”).  Upon
receiving notice of an Asset Sale Offer, any holder of the Notes may elect to
tender its Notes in whole or in part in integral multiples of $100,000 in
exchange for cash.  On the Asset Sale
Offer Payment Date, the Company will, to the extent lawful:  (i) accept for payment all Notes or
portions thereof properly tendered pursuant to the Asset Sale Offer and (ii) make
payment for all such Notes or portions thereof so tendered.  If only a portion of a Note is purchased
pursuant to an Asset Sale Offer, a new Note in a principal amount equal to the
portion thereof not purchased will be issued in the name of the holder thereof
upon cancellation of the original Note. 
Notes (or portions thereof) purchased pursuant to an Asset Sale Offer
will be cancelled and cannot be reissued.


 


(f)                                    To
the extent that the aggregate amount of the Notes and such Pari Passu
Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company may use any remaining Excess Proceeds for general
corporate purposes.  If the aggregate
principal amount of Notes or the Pari Passu Indebtedness surrendered by such
holders thereof exceeds the amount of the Excess Proceeds, the Company shall
select the Notes and Pari Passu Indebtedness to be purchased on a pro rata
basis (with adjustments as needed for selection of authorized minimum
denominations) based on the accreted value or principal amount of the Notes or such
Pari Passu Indebtedness tendered.  Upon
completion of any such Asset Sale Offer, the amount of Excess Proceeds that
resulted in the Asset Sale Offer shall be reset to zero.


 


(g)                                 Pending
the final application of any Net Proceeds pursuant to this Section 10.5,
the holder of such Net Proceeds may apply such Net Proceeds temporarily to
reduce Indebtedness outstanding under a revolving credit facility or otherwise
invest such Net Proceeds in any manner not prohibited by this Agreement.


 


SECTION 11.                                             EVENTS
OF DEFAULT.


 


An “Event of Default” shall exist if any of the
following conditions or events shall occur and be continuing:


 


(a)                                  the
Company defaults in the payment of any principal, Make-Whole Premium Amount,
Change of Control Offer Amount, Applicable Prepayment Premium or the Asset Sale


 


24

















 


Amount, as
applicable, if any, on any Note when the same becomes due and payable, whether
at maturity or at a date fixed for prepayment or by declaration or otherwise;
or


 


(b)                                 the
Company defaults in the payment of any interest on any Note or any other amount
(other than an amount referred to in clause (a) above) under this
Agreement for more than five (5) days after the same becomes due and
payable; or


 


(c)                                  the
Company defaults in the performance of or compliance with any term contained in
Section 7.1(d) or Sections 10.1, 10.2,  10.3,
10.4 or 10.5; or


 


(d)                                 the
Company defaults in the performance of or compliance with any term
contained herein (other than those referred to in Sections 11(a), (b) and
(c)) or in any Note and such default is not remedied within thirty (30)
days after the earlier of (i) a Responsible Officer obtaining actual
knowledge of such default and (ii) the Company receiving written notice of
such default from any holder of Notes (any such written notice to be identified
as a “notice of default” and to refer specifically to this Section 11(d));
or


 


(e)                                  any
representation or warranty made or deemed to be made in writing by or on behalf
of the Company or by any officer of the Company in this Agreement, any
certificate required to be delivered hereunder or in any writing furnished in
connection with the transactions contemplated hereby proves to have been false
or incorrect in any material respect on the date as of which made or furnished;
or


 


(f)                                    (i) the
Company or any Subsidiary is in default (as principal or as guarantor or other
surety) in the payment of any principal of or premium or make-whole amount or
interest on any Indebtedness that is outstanding in an aggregate principal
amount of at least $35,000,000 beyond any period of grace provided with respect
thereto, or (ii) the Company or any Subsidiary fails to observe or perform
any other agreement relating to any Indebtedness in an aggregate outstanding
principal amount of at least $35,000,000 or of any mortgage, indenture or other
agreement relating thereto or any other event occurs the effect of which
default or event is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to become due or to be repurchased, prepaid, defeased or
redeemed (automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made before its stated maturity, or (iii) (x) the
Company or any Subsidiary has become obligated to purchase or repay
Indebtedness before its regular maturity or before its regularly scheduled
dates of payment in an aggregate outstanding principal amount of at least
$35,000,000, or (y) one or more Persons have the right to require the
Company or any Subsidiary so to purchase or repay such Indebtedness; or


 


(g)                                 the
Company or any Significant Subsidiary (other than Northern SC Paper
Corporation) (i) is generally not paying, or admits in writing its
inability to pay, its debts as they become due, (ii) files, or consents by
answer or otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction, (iii) makes an
assignment for the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other officer with similar
powers with respect to


 


25

















 


it or with
respect to any substantial part of its property, (v) is adjudicated as
insolvent or to be liquidated, or (vi) takes corporate action for the
purpose of any of the foregoing; or


 


(h)                                 an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) the appointment of,
without consent of the Company or any of its Significant Subsidiaries, a
custodian, receiver, trustee or other officer with similar powers with respect
to it or with respect to any substantial part of its property, or (ii) an
order for relief or approval of a petition for relief or reorganization or any
other petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or (iii) the
dissolution, winding-up or liquidation of the Company or any of its Significant
Subsidiaries, and such petition shall not be dismissed within 60 days; or


 


(i)                                     a
final judgment or judgments for the payment of money aggregating in excess of
$15,000,000  are rendered against
one or more of the Company and its Subsidiaries (other than Northern SC Paper
Corporation) and which judgments are not, within 60 days after entry thereof,
bonded, discharged or stayed pending appeal, or are not discharged within 60
days after the expiration of such stay; or


 


(j)                                     any
material provision of this Agreement, at any time after its execution and
delivery, shall for any reason cease to be in full force and effect (other than
in accordance with its terms), or the Company contests in writing the validity
or enforceability of any material provision of this Agreement, or the Company
denies in writing that it has any or further liability hereunder (other than as
a result of discharge in accordance with the terms hereof).


 


SECTION 12.                                             REMEDIES ON DEFAULT, ETC.


 


Section 12.1.  Acceleration.  (a)  If an Event of Default with respect
to the Company described in Section 11(g) or (h) (other
than an Event of Default described in clause (vi) of Section 11(g))
has occurred, all the Notes then outstanding shall automatically become
immediately due and payable.


 


(b)                                 If
any other Event of Default has occurred and is continuing, any holder or
holders, with the prior written consent of the holders of not less than fifty
percent (50%) in principal amount of the Notes at the time outstanding, may at
any time at its or their option, by notice or notices to the Company, declare
all the Notes then outstanding to be immediately due and payable.


 


(c)                                  If
any Event of Default described in Section 11(a) or (b) has
occurred and is continuing, any holder or holders of Notes at the time
outstanding affected by such Event of Default may at any time, at its or their
option, by notice or notices to the Company, declare all the Notes held by it
or them to be immediately due and payable.


 


Upon any Notes
becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Notes will forthwith mature and the
entire unpaid principal amount of such Notes, plus (x) all accrued and
unpaid interest thereon and (y) if such Event of Default and acceleration
shall occur prior to January 15, 2012, the Make-Whole Premium Amount, and
if such Event of Default and acceleration shall occur on or after January 15,
2012, the excess of the Applicable Prepayment Premium over the principal
amount, in either case,


 


26

















 


determined in
respect of such principal amount (to the full extent permitted by applicable
law), shall all be immediately due and payable, in each and every case without
presentment, demand, protest or further notice, all of which are hereby
waived.  The Company acknowledges, and
the parties hereto agree, that each holder of a Note has the right to maintain
its investment in the Notes free from repayment by the Company (except as herein
specifically provided for) and that the provision for payment of the Make-Whole
Premium Amount or the excess of the Applicable Prepayment Premium over the
principal amount, as the case may be, by the Company in the event that the
Notes are prepaid or are accelerated as a result of an Event of Default, is
intended to provide compensation for the deprivation of such right under such
circumstances.


 


Section 12.2.  Other Remedies.  If any Default or Event of Default has
occurred and is continuing, and irrespective of whether any Notes have become
or have been declared immediately due and payable under Section 12.1,
the holder of any Note at the time outstanding may proceed to protect and
enforce the rights of such holder by an action at law, suit in equity or other
appropriate proceeding, whether for the specific performance of any agreement
contained herein or in any Note, or for an injunction against a violation of
any of the terms hereof or thereof, or in aid of the exercise of any power
granted hereby or thereby or by law or otherwise.


 


Section 12.3.  Rescission.  At any time after any Notes have been
declared due and payable pursuant to Section 12.1(b) or (c),
the holders of more than fifty percent (50%) in principal amount of the Notes
then outstanding, by written notice to the Company, may rescind and annul any
such declaration and its consequences if (a) the Company has paid all
overdue interest and principal amount on the Notes that are due and payable and
are unpaid other than by reason of such declaration, (b) neither the
Company nor any other Person shall have paid any amounts which have become due
solely by reason of such declaration, (c) all Events of Default and
Defaults, other than non-payment of amounts that have become due solely by
reason of such declaration, have been cured or have been waived pursuant to Section 17,
and (d) no judgment or decree has been entered for the payment of any
monies due pursuant hereto or to the Notes. 
No rescission and annulment under this Section 12.3 will
extend to or affect any subsequent Event of Default or Default or impair any
right consequent thereon.


 


Section 12.4.  No Waivers or Election of Remedies, Expenses,
Etc.  No course
of dealing and no delay on the part of any holder of any Note in exercising any
right, power or remedy shall operate as a waiver thereof or otherwise prejudice
such holder’s rights, powers or remedies. 
No right, power or remedy conferred by this Agreement or by any Note
upon any holder thereof shall be exclusive of any other right, power or remedy
referred to herein or therein or now or hereafter available at law, in equity,
by statute or otherwise.  Without
limiting the obligations of the Company under Section 15, the
Company will pay promptly to the holder of each Note on demand such further
amount as shall be sufficient to cover all costs and expenses of such holder,
including, without limitation, reasonable and documented attorneys’ fees,
expenses and disbursements, incurred in connection with (i) enforcing or
defending (or determining whether or how to enforce or defend) any rights under
this Agreement, the Registration Rights Agreement, any Note or any Warrant, or
in responding to any subpoena or other legal process or informal investigative
demand issued in connection with this Agreement, the Registration Rights Agreement,
any Note or any Warrant, or by reason of being a holder thereof, (ii) the
insolvency or bankruptcy of the Company or any Subsidiary or in connection with
any work-out or restructuring of the transactions contemplated by this
Agreement, and (iii)


 


27

















 


any amendments, waivers or consents under or
in respect of this Agreement, the Registration Rights Agreement, any Note or
any Warrant (regardless of whether or not such amendment, waiver or consent
becomes effective).


 


SECTION 13.                                             REGISTRATION;
EXCHANGE; SUBSTITUTION OF NOTES; TRANSFER RESTRICTIONS.


 


Section 13.1.  Registration of Notes.  The Company shall keep at its principal
executive office a register for the registration and registration of transfers
of Notes (the “Note Register”).  The name and address of each holder of one or
more Notes, each transfer thereof and the name and address of each transferee
of one or more Notes shall be registered in such register.  Prior to due presentment for registration of
transfer, the Person in whose name any Note shall be registered shall be deemed
and treated as the owner and holder thereof for all purposes hereof, and the
Company shall not be affected by any notice or knowledge to the contrary.  The Company shall give to any holder of a
Note promptly upon request therefor, a complete and correct copy of the names
and addresses of all registered holders of Notes.


 


Section 13.2.  Transfer and Exchange of Notes.  Upon surrender of any Note to the Company at
the address and to the attention of the designated officers (all as specified
in Section 18(iii)), for registration of transfer or exchange (and
in the case of a surrender for registration of transfer accompanied by a
written instrument of transfer duly executed by the registered holder of such
Note or such holder’s attorney duly authorized in writing and accompanied by
the relevant name, address and other information for notices of each transferee
of such Note or part thereof), within ten Business Days thereafter, the Company
shall execute and deliver, at the Company’s expense (except as provided below),
one or more new Notes (as requested by the holder thereof) in exchange
therefor, in an aggregate principal amount equal to the unpaid principal amount
of the surrendered Note.  Each such new
Note shall be payable to such Person as such holder may request and shall be
substantially in the form of Exhibit 1.  Each such new Note shall be dated and bear
interest from the date to which interest shall have been paid on the surrendered
Note or dated the date of the surrendered Note if no interest shall have been
paid thereon.  The Company may require
payment of a sum sufficient to cover any stamp tax or governmental charge
imposed in respect of any such transfer of Notes.  Notes shall not be transferred in
denominations of less than $5,000,000, provided
that if necessary to enable the registration of transfer by a holder of its
entire holding of Notes, one Note may be in a denomination of less than
$5,000,000.  Any transferee, by its
acceptance of a Note registered in its name (or the name of its nominee), shall
be deemed to have made the representation set forth in Section 6.1.


 


Section 13.3.  Replacement of Notes.  Upon receipt by the Company at the address
and to the attention of the designated officers (all as specified in Section 18(iii))
of evidence reasonably satisfactory to it of the ownership of and the loss,
theft, destruction or mutilation of any Note, and


 


(a)                                  in
the case of loss, theft or destruction, of indemnity reasonably satisfactory to
it (provided that if the holder
of such Note is, or is a nominee for, an original Purchaser or another holder
of a Note with a minimum net worth of at least $100,000,000 or a Qualified
Institutional


 


28

















 


Buyer, such
Person’s own unsecured agreement of indemnity shall be deemed to be
satisfactory), or


 


(b)                                 in
the case of mutilation, upon surrender and cancellation thereof,


 


within ten (10) Business
Days thereafter, the Company at its own expense shall execute and deliver, in
lieu thereof, a new Note, dated and bearing interest from the date to which
interest shall have been paid on such lost, stolen, destroyed or mutilated Note
or dated the date of such lost, stolen, destroyed or mutilated Note if no
interest shall have been paid thereon.


 


Section 13.4.  Transfer Restrictions.


 


(a)                                  Without
the prior written consent of the Company, until the third anniversary of the
Closing (the “Lock-up Period”),
the Purchasers and their Permitted Transferees (as defined below) shall not (i) directly
or indirectly transfer, sell, assign, pledge, convey, hypothecate or otherwise
encumber or dispose of any of the Notes or the Warrants, or (ii) lend,
hypothecate or permit any custodian to lend or hypothecate any of the Notes or
the Warrants; provided, that such
restriction shall cease to be applicable: (x) at any time that the
Purchasers and their Permitted Transferees are not permitted by applicable law
or regulations to hold the Notes or the Warrants, to exercise the Warrants or
to hold, own or vote the Warrant Shares despite having taken commercially
reasonable efforts to comply with filing and notice requirements under
applicable law or (y) after the occurrence of the earlier of (1) the
announcement of or the entering into an agreement reasonably expected to
result, upon consummation, in a Change of Control or (2) the occurrence of
a Change of Control.  Each transaction
referenced in clauses (i) and (ii) is herein called a “Transfer”. 
Exercises of the Warrants for the Warrant Shares (as defined below)
in accordance with the terms of the Warrants shall not be deemed Transfers.


 


(b)                                 The
Purchasers and the Permitted Transferees (individually or collectively) may not
Transfer any shares of Class A Common Stock issued upon exercise of the
Warrants (the “Warrant Shares”)
other than (i) in a transaction that has been specifically approved by the
Company in writing, (ii) in a public offering registered with the SEC, in
a sale under Rule 144 under the Securities Act, or in any other sale
exempt from registration under the Securities Act, or (iii) in a private
transaction or series of related transactions.


 


(c)                                  Notwithstanding
the foregoing, Sections 13.4(a) and (b) shall not
prevent the Purchasers and the Permitted Transferees from Transferring any or
all of the Notes, the Warrants or the Warrant Shares, at any time, to any
Affiliate of the Purchaser (each, a “Permitted
Transferee”), but only if the Permitted Transferee agrees in writing
for the benefit of the Company to be bound by the terms of this Agreement
(including these transfer restrictions) and to deliver to the Company at the
time of such transfer the items described in Section 4(B).4; provided that if such Purchaser ceases to
be an Affiliate of such Permitted Transferee, such Permitted Transferee shall
be required to transfer such Notes, Warrants or Warrant Shares to any other
Purchaser or a Permitted Transferee of such Purchaser (or in the case of the
Warrant Shares, in accordance with Section 13.4(b)) immediately; provided  further,
that no such Transfer shall relieve the Purchasers of their respective
obligations under this Agreement.  Each
Purchaser shall cause each Permitted Transferee to comply with this Agreement
applicable to it.


 


29
















 


(d)                                 Without
prior written consent of the Company during the Lock-up Period, the Purchasers
and the Permitted Transferees may not engage in any Hedging Transaction with
respect to any of the Notes, the Warrants or the Warrant Shares.


 


Section 13.5.  Legend.  The Purchasers agree that all certificates or
other instruments representing the Notes, the Warrants and the Warrant Shares
will bear a legend substantially to the following effect:


 


“THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION
STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR
SUCH LAWS.


 


THIS
INSTRUMENT IS ISSUED PURSUANT TO AND SUBJECT TO THE RESTRICTIONS ON TRANSFER
AND OTHER PROVISIONS OF A SECURITIES PURCHASE AGREEMENT, DATED JANUARY 19,
2009, BETWEEN THE ISSUER OF THESE SECURITIES AND THE PURCHASERS REFERRED TO
THEREIN, A COPY OF WHICH IS ON FILE WITH THE ISSUER.  THE SECURITIES REPRESENTED BY THIS INSTRUMENT
MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID
AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENT
WILL BE VOID.”


 


In the event
that (i) any of the Warrant Shares become registered under the Securities
Act or (ii) the Warrant Shares are eligible to be transferred without
restriction in accordance with Rule 144 under the Securities Act, the
Company shall issue new certificates or other instruments representing such
Warrant Shares, which shall not contain such portion of the above legend that
is no longer applicable; provided
that the Purchasers surrender to the Company the previously issued certificates
or other instruments.


 


Section 13.6.  Amendments of Transfer Restrictions.  Notwithstanding any other provision in this
Agreement to the contrary, (i) the consent of any holder of any of the
Notes shall be required for any amendment to the transfer restrictions in Sections
13.4 or 13.5 which amendment would affect such holder of the Notes
and (ii) the consent of any holder of any of the Warrants shall be
required for any amendment to the transfer restrictions in Sections 13.4
or 13.5 which amendment would affect such holder of the Warrants.


 


SECTION 14.       PAYMENTS ON NOTES.


 


Section 14.1.  Place of Payment.  Subject to Section 14.2, payments
of principal, Change of Control Offer Amount, Make-Whole Premium Amount,
Applicable Prepayment Premium or the Asset Sale Amount, if any, and interest
becoming due and payable on the Notes


 


30

















 


shall be made in New York, New York at the
principal office of the Company in such jurisdiction.  The Company may at any time, by notice to
each holder of a Note, change the place of payment of the Notes so long as such
place of payment shall be either the principal office of the Company in such jurisdiction
or the principal office of a bank or trust company in such jurisdiction.


 


Section 14.2.  Home Office Payment.  So long as any Note Purchaser or its nominee
shall be the holder of any Note, and notwithstanding anything contained in Section 14.1
or in such Note to the contrary, the Company will pay all sums becoming due on
such Note for principal, Make-Whole Premium Amount, Change of Control Offer
Amount, Applicable Prepayment Premium or the Asset Sale Amount, if any, and
interest by the method and at the address specified for such purpose below such
Note Purchaser’s name in Schedule A, or by such other method or at such
other address as such Note Purchaser shall have from time to time specified to
the Company in writing for such purpose, without the presentation or surrender
of such Note or the making of any notation thereon, except that upon written
request of the Company made concurrently with or reasonably promptly after
payment or prepayment in full of any Note, such Note Purchaser shall surrender
such Note for cancellation, reasonably promptly after any such request, to the
Company at its principal executive office or at the place of payment most
recently designated by the Company pursuant to Section 14.1.  Prior to any sale or other disposition of any
Note held by a Purchaser or its nominee, such Purchaser will, at its election,
either endorse thereon the amount of principal paid thereon and the last date
to which interest has been paid thereon or surrender such Note to the Company
in exchange for a new Note or Notes pursuant to Section 13.2.  The Company will afford the benefits of this Section 14.2
to any holder of any Note that is the direct or indirect transferee of any Note
purchased by a Note Purchaser under this Agreement and that has made the same
agreement relating to such Note as the Note Purchasers have made in this Section 14.2.


 


Section 14.3.  Additional Payments.   The Company and each Purchaser acknowledge
that as of the date of this Agreement, payments with respect to the Notes shall
be subject to withholding and deduction on account of Taxes imposed by the
United States.  If, due to any change in
applicable tax law or regulation, including any applicable tax treaties, or in
any interpretation thereof, occurring after the date of this Agreement, an
amount is required to be withheld or deducted from any such payment to any
Purchaser or on account of any Taxes imposed by the United States or any
political subdivision or taxing authority thereof or therein, and such amounts
are in excess of those required to be withheld or deducted from any such
payment to such Purchaser as of the date of this Agreement, then, unless
otherwise agreed as provided in Section 8.5, the Company shall pay such
additional amounts as may be necessary to ensure that the net amount actually
received by such Purchaser after such withholding or deduction is equal to the
amount that such Purchaser would have received had no such change in law or
regulation, including any applicable tax treaties, or in any interpretation
thereof, occurred, provided, however,
that no such additional amounts shall be payable in respect of any such Taxes
imposed to the extent of a Purchaser’s failure to provide documentation
establishing an exemption from or reduction in U.S. federal withholding tax
pursuant to Section 4(B).4 or Section 22.4 hereof that
such Purchaser is permitted to provide following such change in law.  In addition, with respect to all Taxes
required to be withheld or deducted from any such payment to any Purchaser, the
Company shall send to such Purchaser, within thirty (30) days of the payment


 


31

















 


of such Taxes, such documentation of payment
of such Taxes as is reasonably available to the Company.


 


SECTION 15.       BROKERS, ETC.


 


Section 15.1.  Brokers.  The Company will pay, and will save each
Purchaser and each other holder of a Note or a Warrant harmless from, all
claims in respect of any fees, costs or expenses, if any, of brokers and
finders (other than those, if any, retained by a Purchaser or other holder in connection
with its purchase of the Notes or the Warrants).


 


Section 15.2.  Survival.  The obligations of the Company under this Section 15
will survive the payment or transfer of any Note or Warrant, the enforcement,
amendment or waiver of any provision of this Agreement, the Notes or the
Warrants, and the termination of this Agreement.


 


SECTION 16.       SURVIVAL OF REPRESENTATIONS AND
WARRANTIES; ENTIRE AGREEMENT.


 


All
representations and warranties contained herein shall survive the execution and
delivery of this Agreement, the Notes and the Warrants, the purchase or
transfer by any Note Purchaser of any Note or portion thereof or interest
therein, the purchase or transfer by any Warrant Purchaser of any Warrant or
portion thereof or interest therein, and the payment of any Note, and may be
relied upon by any subsequent holder of a Note or Warrant, regardless of any
investigation made at any time by or on behalf of such Purchaser or any other
holder of a Note or Warrant.  All
statements contained in any certificate or other instrument delivered by or on
behalf of the Company pursuant to this Agreement shall be deemed
representations and warranties of the Company under this Agreement.  Subject to the preceding sentence, this
Agreement, the Notes and the Warrants embody the entire agreement and
understanding between each Purchaser and the Company and supersede all prior
agreements and understandings relating to the subject matter hereof.


 


SECTION 17.       AMENDMENT AND WAIVER.


 


Section 17.1.  Requirements.  This Agreement and the Notes may be amended,
and the observance of any term hereof or of the Notes may be waived (either
retroactively or prospectively), with (and only with) the written consent of
the Company and the Required Holders, except that (a) no amendment or waiver
of any of the provisions of Section 1, 2, 3, 4,
5, 6 or 21 hereof, or any defined term (as it is used
therein), will be effective as to any Purchaser unless consented to by such
Purchaser in writing, and (b) no such amendment or waiver may, without the
written consent of the holder of each Note at the time outstanding affected
thereby, (i) subject to the provisions of Section 12 relating
to acceleration or rescission, change the amount or time of any prepayment or
payment of principal of, or reduce the rate or change the time of payment or
method of computation of interest or of the Make-Whole Premium Amount,
Applicable Prepayment Premium, the Change of Control Offer Amount or the Asset
Sale Amount, if any, in respect of, the Notes, (ii) change the percentage
of the principal amount of the Notes the holders of which are required to
consent to any such amendment or waiver, or (iii)


 


32

















 


amend any of Sections 8, 11(a), 11(b),
12, 17 or 20. 
Amendments of Sections 13.4 or 13.5 shall be subject to
the requirements of Section 13.6.


 


Section 17.2.  Solicitation of Holders of Notes.


 


(a)           Solicitation.  The Company will provide each holder of the
Notes (irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes.  The Company will
deliver executed or true and correct copies of each amendment, waiver or
consent effected pursuant to the provisions of this Section 17 to
each holder of outstanding Notes promptly following the date on which it is
executed and delivered by, or receives the consent or approval of, the
requisite holders of Notes.


 


(b)           Payment. 
The Company will not directly or indirectly pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or otherwise,
or grant any security or provide other credit support, to any holder of Notes
as consideration for or as an inducement to the entering into by any holder of
Notes of any waiver or amendment of any of the terms and provisions hereof
unless such remuneration is concurrently paid, or security is concurrently
granted or other credit support concurrently provided, on the same terms,
ratably to each holder of Notes then outstanding even if such holder did not
consent to such waiver or amendment.


 


Section 17.3.  Binding Effect, etc.  Any amendment or waiver consented to as
provided in this Section 17.3 applies equally to all holders of
Notes and is binding upon them and upon each future holder of any Note and upon
the Company without regard to whether such Note has been marked to indicate
such amendment or waiver.  No such
amendment or waiver will extend to or affect any obligation, covenant,
agreement, Default or Event of Default not expressly amended or waived or impair
any right consequent thereon.  No course
of dealing between the Company and the holder of any Note nor any delay in
exercising any rights hereunder or under any Note shall operate as a waiver of
any rights of any holder of such Note. 
As used herein, the term “this Agreement” and references thereto shall
mean this Agreement as it may from time to time be amended or supplemented.


 


Section 17.4.  Notes Held by Company, etc.  Solely for the purpose of determining whether
the holders of the requisite percentage of the aggregate principal amount of
Notes then outstanding approved or consented to any amendment, waiver or
consent to be given under this Agreement or the Notes, or have directed the
taking of any action provided herein or in the Notes to be taken upon the
direction of the holders of a specified percentage of the aggregate principal
amount of Notes then outstanding, Notes directly or indirectly owned by the
Company or any of its Affiliates shall be deemed not to be outstanding.


 


SECTION 18.       NOTICES.


 


All notices
and communications provided for hereunder shall be in writing and sent (a) by
telecopy if the sender on the same day sends a confirming copy of such notice
by a recognized overnight delivery service (charges prepaid), or (b) by
registered or certified mail


 


33

















 


with return
receipt requested (postage prepaid), or (c) by a recognized overnight
delivery service (with charges prepaid). 
Any such notice must be sent:


 


(i)            if to any Purchaser
or its nominee, to such Purchaser or nominee at the address specified for such
communications in Schedule A, or at such other address as such Purchaser
or nominee shall have specified to the Company in writing,


 


(ii)           if to any other
holder of any Note or of any Warrant, to such holder at such address as such
other holder shall have specified to the Company in writing, or


 


(iii)          if to the Company,
to the Company at its address set forth at the beginning hereof to the
attention of the General Counsel and the Chief Financial Officer, or at such
other address as the Company shall have specified to the holder of each Note
and the holder of each Warrant in writing.


 


Notices under
this Section 18 will be deemed given only when actually received.


 


SECTION 19.       REPRODUCTION OF DOCUMENTS.


 


This Agreement
and all documents relating thereto, including, without limitation, (a) consents,
waivers and modifications that may hereafter be executed, (b) documents
received by any Purchaser at the Closing (except the Notes and the Warrants
themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished to any Purchaser, may be
reproduced by such Purchaser by any photographic, photostatic, electronic,
digital, or other similar process and such Purchaser may destroy any original
document so reproduced.  The Company
agrees and stipulates that, to the extent permitted by applicable law, any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by such Purchaser in
the regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.  This Section 19 shall not
prohibit the Company or any other holder of Notes or any other holder of
Warrants from contesting any such reproduction to the same extent that it could
contest the original, or from introducing evidence to demonstrate the
inaccuracy of any such reproduction.


 


SECTION 20.       CONFIDENTIAL INFORMATION.


 


For the
purposes of this Section 20, “Confidential
Information” means information delivered to any Purchaser by or on
behalf of the Company or any Subsidiary in connection with the transactions
contemplated by or otherwise pursuant to this Agreement that is proprietary in
nature and that was clearly marked or labeled or otherwise adequately
identified when received by such Purchaser as being confidential information of
the Company or such Subsidiary, provided
that such term does not include information that (a) was publicly known or
otherwise known to such Purchaser prior to the time of such disclosure, (b) subsequently
becomes publicly known through no act or omission by such Purchaser or any
person acting on such Purchaser’s behalf, or (c) otherwise becomes known
to such Purchaser other than through disclosure by the Company or any
Subsidiary.  Each Purchaser will maintain
the confidentiality of such Confidential Information in accordance with
procedures adopted by such Purchaser in good faith to protect confidential
information of third parties delivered to such Purchaser, provided that


 


34

















 


such Purchaser
may deliver or disclose Confidential Information to (i) its directors,
officers, employees, agents, attorneys and affiliates (to the extent such
disclosure reasonably relates to the administration of the investment
represented by its Notes and/or Warrants, as applicable), (ii) its
financial advisors and other professional advisors who agree to hold
confidential the Confidential Information substantially in accordance with the
terms of this Section 20, (iii) any other holder of any Note, (iv) any
other holder of any Warrant, (v) any other Person to which it sells or
offers to sell any Note or any Warrant or any part thereof or any participation
therein (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 20
and the transfer restrictions in Section 13.4), (vi) any
Person from which it offers to purchase any other security of the Company (if
such Person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 20), (vii) any
federal or state regulatory authority having jurisdiction over such Purchaser, (viii) any
nationally recognized rating agency that requires access to information about
such Purchaser’s investment portfolio, or (ix) any other Person to which
such delivery or disclosure may be necessary or appropriate (w) to effect
compliance with any law, rule, regulation or order applicable to such
Purchaser, (x) in response to any subpoena or other legal process, (y) in
connection with any litigation to which such Purchaser is a party or (z) if
an Event of Default has occurred and is continuing, to the extent such
Purchaser may reasonably determine such delivery and disclosure to be necessary
or appropriate in the enforcement or for the protection of the rights and
remedies under such Purchaser’s Notes and/or Warrants, as applicable, and this
Agreement.  On reasonable request by the
Company in connection with the delivery to any holder of a Note or any holder
of a Warrant of information required to be delivered to such holder under this
Agreement or requested by such holder (other than a holder that is a party to
this Agreement or its nominee), such holder will enter into an agreement with
the Company embodying the provisions of this Section 20.


 


Each Purchaser
acknowledges that the U.S. securities laws prohibit a Person who has received
from an issuer material non-public information about the issuer from purchasing
or selling securities of such issuer, or from communicating such information to
any other Person under circumstances in which it is reasonably foreseeable that
such Person is likely to purchase or sell such securities and the Confidential
Information may constitute material non-public information about the
Company.  Each Purchaser undertakes to
refrain and to take appropriate steps to cause its Affiliates to refrain, from
purchasing or selling securities of the Company on the basis of such
Confidential Information and from communicating such information to any other
Person under circumstances in which it is reasonably foreseeable that such
Person is likely to purchase or sell such securities.


 


SECTION 21.       SUBSTITUTION OF PURCHASER.


 


Each Purchaser
shall have the right to substitute any one of its Affiliates as the purchaser
of the Notes and/or Warrants, as applicable, that it has agreed to purchase
hereunder, by written notice to the Company, which notice shall be signed by
both such Purchaser and such Affiliate, shall contain such Affiliate’s
agreement to be bound by this Agreement and shall contain a confirmation by
such Affiliate of the accuracy with respect to it of the representations set
forth in Section 6.  Upon
receipt of such notice, any reference to such Purchaser in this Agreement
(other than in this Section 21), shall be deemed to refer to such
Affiliate in lieu of such original Purchaser. 
In the event that such Affiliate is so substituted as a Purchaser
hereunder and such


 


35

















 


Affiliate
thereafter transfers to such original Purchaser all of the Notes and/or Warrants,
as applicable, then held by such Affiliate, upon receipt by the Company of
notice of such transfer, any reference to such Affiliate as a “Purchaser” in
this Agreement (other than in this Section 21), shall no longer be
deemed to refer to such Affiliate, but shall refer to such original Purchaser,
and such original Purchaser shall again have all the rights of an original
holder of the Notes and/or Warrants, as applicable, under this Agreement.


 


SECTION 22.       MISCELLANEOUS.


 


Section 22.1. Termination.  This Agreement may be terminated at any time
prior to the Closing:


 


(a)           by either the
Purchasers or the Company if the Closing shall not have occurred by the seventh
(7th) calendar day following the date of this Agreement; or


 


(b)           by either the
Purchasers or the Company in the event that any Governmental Authority shall
have issued an order, decree or ruling or taken any other action restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement and such order, decree, ruling or other action shall have become
final and nonappealable; or


 


(c)           by the mutual
written consent of the Purchasers and the Company.


 


In the event
of termination of this Agreement as provided in this Section 22.1,
this Agreement shall forthwith become void and there shall be no liability on
the part of either party hereto, except that nothing herein shall relieve
either party from liability for any breach of this Agreement.


 


Section 22.2.  Successors and Assigns.  All covenants and other agreements contained
in this Agreement by or on behalf of any of the parties hereto bind and inure
to the benefit of their respective successors and assigns whether so expressed
or not.  The Company shall not assign or
delegate any of its rights or duties under this Agreement without the prior
written consent of each holder of the Notes, and any attempted assignment
without such consent shall be null and void.


 


Section 22.3.  Payments Due on Non-Business Days.  Anything in this Agreement or the Notes to
the contrary notwithstanding (but without limiting the requirement in Section 8.6
that the notice of any optional prepayment specify a Business Day as the date
fixed for such prepayment), any payment of principal of, Change of Control
Offer Amount, Applicable Prepayment Premium, Asset Sale Amount or interest on
any Note that is due on a date other than a Business Day shall be made on the
next succeeding Business Day without including the additional days elapsed in
the computation of the interest payable on such next succeeding Business Day; provided that if the maturity date of any
Note is a date other than a Business Day, the payment otherwise due on such
maturity date shall be made on the next succeeding Business Day and shall
include the additional days elapsed in the computation of interest payable on
such next succeeding Business Day.


 


Section 22.4.  Updates of
Tax Information.  Each
Purchaser (or Permitted Transferee of such Purchaser) shall deliver to the
Company two further copies of any the forms or certifications described in Section 4(B).4
on or before the date that any such form or certification


 


36

















 


expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form or certification
previously delivered by it to the Company.


 


Section 22.5.  Accounting
Terms.  All accounting terms
used herein which are not expressly defined in this Agreement have the meanings
respectively given to them in accordance with GAAP applicable to public companies
generally, or authoritative interpretations thereof, as applicable.  Except as otherwise specifically provided
herein, (i) all computations made pursuant to this Agreement shall be made
in accordance with GAAP, and (ii) all financial statements shall be
prepared in accordance with GAAP.


 


Section 22.6.  Severability.  Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by
law) not invalidate or render unenforceable such provision in any other
jurisdiction.


 


Section 22.7.  Construction,
etc.  Each covenant contained
herein shall be construed (absent express provision to the contrary) as being
independent of each other covenant contained herein, so that compliance with
any one covenant shall not (absent such an express contrary provision) be
deemed to excuse compliance with any other covenant.  Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.


 


For the
avoidance of doubt, all Schedules and Exhibits attached to this Agreement shall
be deemed to be a part hereof.


 


Section 22.8.  Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be an original but all of which together
shall constitute one instrument.  Each
counterpart may consist of a number of copies hereof, each signed by less than
all, but together signed by all, of the parties hereto.


 


Section 22.9.  Governing
Law.  This Agreement shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the law of the State of New York excluding choice-of-law
principles of the law of such State that would permit the application of the
laws of a jurisdiction other than such State.


 


Section 22.10.  Interest
Rate Limitation. 
Notwithstanding anything herein to the contrary, if at any time the
interest rate applicable to any Note, together with all fees, charges and other
amounts which are treated as interest on such Note under applicable law
(collectively, the “Charges”),
shall exceed the maximum lawful rate (the “Maximum
Rate”) which may be contracted for, charged, taken, received or
reserved by the holder of such Note in accordance with applicable law, the rate
of interest payable in respect of such Note, together with all Charges payable
in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of
such Note but were not payable as a result of the operation of this Section 22.10
shall be cumulated and the interest and Charges


 


37

















 


payable to such holder in respect of other
Notes or periods shall be increased (but not above the Maximum Rate therefor)
until such cumulated amount shall have been received by such holder.


 


The Company
shall not, and shall not permit any of its Subsidiaries to (to the extent that
it may lawfully do so) at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of its obligations under this Agreement
or any Note, and the Company expressly waives all benefit or advantage of any
such law, and covenants (to the extent that it may lawfully do so) that it
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the holders of Notes, but shall suffer and permit
the execution of every such power as though no such law has been enacted.


 


Section 22.11.  Jurisdiction and Process; Waiver of Jury
Trial (a) Each of the parties hereto irrevocably
submits to the non-exclusive jurisdiction of any New York State or federal
court sitting in the Borough of Manhattan, The City of New York, over any suit,
action or proceeding arising out of or relating to this Agreement, the Notes or
the Warrants.  To the fullest extent
permitted by applicable law, each of the parties hereto irrevocably waives and
agrees not to assert, by way of motion, as a defense or otherwise, any claim
that it is not subject to the jurisdiction of any such court, any objection
that it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding brought in any such court and any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.


 


(b)           Each of the parties
hereto consents to process being served by or on behalf of any other party
hereto in any suit, action or proceeding of the nature referred to in Section 22.11(a) by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, return receipt requested, to it at its
address specified in Section 18 or at such other address of which
such party shall then have been notified pursuant to said Section.  The parties hereto agree that such service
upon receipt (i) shall be deemed in every respect effective service of
process upon it in any such suit, action or proceeding and (ii) shall, to
the fullest extent permitted by applicable law, be taken and held to be valid
personal service upon and personal delivery to it.  Notices hereunder shall be conclusively
presumed received as evidenced by a delivery receipt furnished by the United
States Postal Service or any reputable commercial delivery service.


 


(c)           Nothing in this Section 22,11
shall affect the right of any party hereto to serve process in any manner
permitted by law or to enforce in any lawful manner a judgment obtained in one
jurisdiction in any other jurisdiction.


 


(d)           THE PARTIES HERETO
HEREBY WAIVE TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS
AGREEMENT, THE NOTES, THE WARRANTS OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION
HEREWITH OR THEREWITH.


 


Section 22.12.  Acknowledgment.  Each party hereto acknowledges that it is not
relying upon any representation or warranty not set forth in the Disclosure
Documents.  Each Purchaser


 


38

















 


acknowledges that it had an opportunity to
conduct such review and analysis of the business, assets, condition, operations
and prospects of the Company and its Subsidiaries, including an opportunity to
ask such questions of management (for which it has received such answers) and
to review such information maintained by the Company, in each case as such
Purchaser considers sufficient for the purpose of making its purchase of the
Notes and/or the Warrants, as applicable, hereunder.  Each Purchaser further acknowledges that it
has had an opportunity to consult with its own counsel, financial and tax
advisers and other professional advisers as it believes is sufficient for
purposes of its purchase of the Notes and/or the Warrants, as applicable.


 


* 
*  *  *  *


 


39

















 


If you are in
agreement with the foregoing, please sign the form of agreement on a
counterpart of this Agreement and return it to the Company, whereupon this
Agreement shall become a binding agreement between you and the Company.


 


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
  THE NEW YORK
  TIMES COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James
  Follo

  
	
   

  	
   Name:
  James Follo

  
	
   

  	
   Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  This
  Agreement is hereby

  	
   

  
	
  accepted and
  agreed to as

  	
   

  
	
  of the date
  thereof.

  	
   

  
	
   

  	
   

  
	
  INMOBILIARIA
  CARSO, S.A. de C.V.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Raul
  Humberto Zepeda Ruiz

  	
   

  
	
  Name: Raul
  Humberto Zepeda Ruiz

  	
   

  
	
  Title:
  Attorney in Fact

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BANCO
  INBURSA, S.A., INSTITUCÍON DE

  	
   

  
	
  BANCA
  MÚLTIPLE GRUPO FINANCIERO

  	
   

  
	
  INBURSA

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Raul
  Humberto Zepeda Ruiz

  	
   

  
	
  Name: Raul
  Humberto Zepeda Ruiz

  	
   

  
	
  Title:
  Attorney in Fact

  	
   

  



 


 


EXECUTION COPY OF SECURITIES PURCHASE
AGREEMENT


 
















 


SCHEDULE
A


 


THE
NEW YORK TIMES COMPANY


 


INFORMATION
RELATING TO NOTE PURCHASERS


 


	
  NAME AND
  ADDRESS OF PURCHASERS

  	
   

  	
  PRINCIPAL AMOUNT OF

  NOTES TO BE PURCHASED

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (A)

  	
   

  	
  Inmobiliaria Carso, S.A. de C.V.

  	
   

  	
  $

  	
  125,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (1)

  	
   

  	
  All payments
  by wire transfer of immediately available funds in accordance with written
  instructions provided to the Company, with sufficient information to identify
  the source and application of such funds.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  All notices
  of payments and written confirmations of such wire transfers:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Raul Zepeda

  Avenida
  Insurgentes Sur #3500, PB

  Colonia Peña
  Pobre

  Delegación
  Tlalpan, CP

  14060 México
  D.F., México

  Telecopy
  No.: (52) 55 5520 0525

  Confirmation No.: (52) 55 5325 0505

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (B)

  	
   

  	
  Banco Inbursa S.A., Institución de Banca
  Múltiple Grupo Financiero Inbursa

  	
   

  	
  $

  	
  125,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (1)

  	
   

  	
  All payments
  by wire transfer of immediately available funds in accordance with written
  instructions provided to the Company with sufficient information to identify
  the source and application of such funds.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  All notices
  of payments and written confirmations of such wire transfers:

  	
   

  	
   

  	
   

  



 


1

















 


	
   

  	
   

  	
  Raul Zepeda

  Avenida
  Insurgentes Sur #3500, PB

  Colonia Peña
  Pobre

  Delegación
  Tlalpan, CP

  14060 México
  D.F., México

  Telecopy
  No.: (52) 55 5520 0525

  Confirmation No.: (52) 55 5325 0505

  	
   

  	
   

  	
   

  



 


INFORMATION
RELATING TO WARRANT PURCHASERS


 


	
  NAME AND ADDRESS OF PURCHASERS

  	
   

  	
  WARRANTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (A)

  	
   

  	
  Inmobiliaria Carso, S.A. de C.V.

  	
   

  	
  7,950,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (1)

  	
   

  	
  All payments
  by wire transfer of immediately available funds in accordance with written
  instructions provided to the Company, with sufficient information to identify
  the source and application of such funds.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  All notices of payments and written
  confirmations of such wire transfers:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Raul Zepeda

  Avenida Insurgentes Sur #3500, PB

  Colonia Peña Pobre

  Delegación Tlalpan, CP

  14060 México D.F., México

  Telecopy No.: (52) 55 5520 0525

  Confirmation No.: (52) 55 5325 0505

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (B)

  	
   

  	
  Banco Inbursa S.A., Institución de Banca
  Múltiple Grupo Financiero Inbursa

  	
   

  	
  7,950,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (1)

  	
   

  	
  All payments
  by wire transfer of immediately available funds in accordance with written
  instructions provided to the Company, with sufficient information to identify
  the source and application of such funds.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  All notices of payments and written
  confirmations of such wire transfers:

  	
   

  	
   

  	
   

  



 


2

















 


	
   

  	
   

  	
  Raul Zepeda

  Avenida Insurgentes Sur #3500, PB

  Colonia Peña Pobre

  Delegación Tlalpan, CP

  14060 México D.F., México

  Telecopy No.: (52) 55 5520 0525

  Confirmation No.: (52) 55 5325 0505

  	
   

  	
   

  	
   

  



 


3

















 


SCHEDULE
B


 


DEFINED
TERMS


 


As used
herein, the following terms have the respective meanings set forth below or set
forth in the Section hereof following such term:


 


“Acquired Indebtedness” means, with respect
to any specified Person, (i) Indebtedness of any other Person existing at
the time such other Person is merged with or into or became a Subsidiary of
such specified Person, excluding, without limitation, Indebtedness incurred in
connection with, or in contemplation of, such other Person merging with or into
or becoming a Subsidiary of such specified Person, and (ii) Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person at
the time such asset is acquired by such specified Person.


 


“Affiliate”
means, at any time, and with respect to any Person, any other Person
that at such time directly or indirectly through one or more intermediaries
Controls, or is Controlled by, or is under common Control with, such first
Person, and (i) with respect to the Company, shall include any Person
beneficially owning or holding, directly or indirectly, ten percent (10%) or
more of any class of voting or equity interests of the Company or any
Subsidiary or any corporation of which the Company and its Subsidiaries
beneficially own or hold, in the aggregate, directly or indirectly, ten percent
(10%) or more of any class of voting or equity interests and (ii) with
respect to any Purchaser, shall include any Person that at such time directly
or indirectly through one or more intermediaries Controls, is Controlled by or
is under common Control with Mr. Carlos Slim Helú or his descendants (or
any spouse thereof).  As used in this
definition, “Control” means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.


 


“Anti-Terrorism Order” means Executive Order
No. 13,224 of September 24, 2001, Blocking Property and Prohibiting
Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism,
66 U.S. Fed. Reg. 49, 079 (2001), as amended.


 


“Applicable Prepayment Premium” means, with
respect to any Note, as of any date of optional prepayment, the following:  (i) from January 15, 2012 to January 14,
2013, an amount equal to one hundred and five percent (105.00%) of the
outstanding principal amount of the Notes at such date; (ii) from January 15,
2013 to January 14, 2014 an amount equal to one hundred two and 50/100
percent (102.50%) of the outstanding principal amount of the Notes at such
date; and (iii) from January 15, 2014 to the maturity date of the
Notes, an amount equal to one hundred percent (100.00%) of the outstanding
principal amount of the Notes at such date.


 


“Asset Sale” means the sale, transfer,
conveyance, assignment or other disposition, directly or indirectly, including
by merger or consolidation in any transaction or series of related transactions
by the Company or any of its Subsidiaries of any of the following:  (a) any of the Capital Stock of any of
the Company’s Subsidiaries or (b) any or all of the assets of the


 


SCHEDULE B

(to Securities Purchase Agreement)


 


1

















 


Company or any of its Subsidiaries, including
the sale of substantially all of the assets of any division or line of business
of the Company; in each case other than sales, transfers, conveyances, or other
dispositions:  (i) of goods and
services in the ordinary course of business; (ii) of accounts in the
ordinary course of business for purposes of collection; (iii) of the
properties and assets of the Company, substantially as an entirety, which are
governed by the provisions of Section 10.4 hereof; (iv) as
part of the abandonment, sale or disposition by the Company or any of its
Subsidiaries of damaged, surplus, obsolete or worn-out assets in the ordinary
course of business; (v) among the Company and any of its Subsidiaries; and
(vi) for less than $500,000 in total consideration.


 


“Asset Sale Amount” is defined in Section 10.5(c).


 


“Asset Sale Offer” is defined in Section 10.5(c).


 


“Asset Sale Offer Payment Date” is defined
in Section 10.5(e).


 


“Attributable Indebtedness” means, on any
date, (a) in respect of any Capital Lease of any Person, the capitalized
amount thereof that would appear on a balance sheet of such Person prepared as
of such date in accordance with GAAP, and (b) in respect of any Synthetic
Lease, the capitalized amount of the remaining lease payments under the
relevant lease that would appear on a balance sheet of such Person prepared as
of such date in accordance with GAAP if such lease were accounted for as a
capital lease.


 


“Board of Directors” means either the board
of directors of the Company or any duly authorized committee of that board.


 


“Business Day” means any day other than a
Saturday, a Sunday or a day on which commercial banks in New York, New York are
required or authorized to be closed.


 


“Called Principal” means, with respect to
any Note, the principal amount of such Note that is to be prepaid pursuant to Section 8.2(a) or
has become or is declared to be immediately due and payable pursuant to Section 12.1,
as the context requires.


 


“Capital Lease” means, at any time, a lease
with respect to which the lessee is required concurrently to recognize the
acquisition of an asset and the incurrence of a liability in accordance with
GAAP.


 


“Capital Stock” means any and all shares,
membership or other interests, participations or other equivalents (however
designated) of capital stock of a corporation, any and all membership
interests, participations or other equivalents (however designated) in a
limited liability company, any and all equivalent ownership interests in a
Person (other than a corporation), and any and all warrants, rights or options
to purchase any of the foregoing.


 


“Capitalization Date” is defined in Section 5.3.


 


“Change of Control” is defined in Section 8.3(f).


 


2

















 


“Change of Control Offer Amount” means, with
respect to any Note, an amount equal to 101% of the principal amount of such
Note.


 


“Charges” is defined in Section 22.10.


 


“Closing” is defined in Section 3.


 


“Code”  means
the Internal Revenue Code of 1986, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time.


 


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


 


“Company” means The New York Times Company,
a New York corporation or any successor that becomes such in the manner
prescribed in Section 10.4.


 


“Company’s SEC Filings” means each of the
documents listed below and any filings made with the SEC under Section 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the date of this Agreement:


 


(i)                                     Annual
Report on Form 10-K for the fiscal year ended December 30, 2007,
filed with the SEC on February 26, 2008;


 


(ii)                                  Quarterly
Report on Form 10-Q for the quarter ended March 30, 2008, filed with
the SEC on May 7, 2008;


 


(iii)                               Quarterly
Report on Form 10-Q for the quarter ended June 29, 2008, filed with
the SEC on August 6, 2008;


 


(iv)                              Quarterly
Report on Form 10-Q for the quarter ended September 28, 2008, filed
with the SEC on November 7, 2008; and


 


(v)                                 Current
Reports on Form 8-K, filed with the SEC on February 12, 2008, March 17,
2008, September 8, 2008 and October 23, 2008 (as to Item 5.02 only).


 


“Confidential Information” is defined in Section 20.


 


“Consolidated
EBITDA” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net
Income for such period plus (a) the following to the extent deducted in
calculating such Consolidated Net Income: (i) Consolidated Interest
Expense for such period, (ii) the provision for Federal, state, local and
foreign income taxes payable by the Company and its Subsidiaries for such
period, (iii) depreciation and amortization expense, (iv) non-cash
items, including, without limitation, stock compensation expenses and (v) other
non-recurring expenses of the Company and its Subsidiaries reducing such
Consolidated Net Income which do not represent a cash item in such period or
any future period and minus (b) the following to the extent included in
calculating such Consolidated Net Income: (i) Federal, state, local and
foreign income tax credits of the Company and its


 


3

















 


Subsidiaries for such period and (ii) all
non-cash items increasing Consolidated Net Income for such period.


 


“Consolidated Fixed Charges” means with
respect to any Person for any period, the sum, without duplication, of (i) Consolidated
Interest Expense for such Person for such period, plus (ii) all cash and
non-cash dividends or other distributions paid, accrued or scheduled to be paid
or accrued, on any series of Preferred Stock of the Company during such period
to any Person other than such Person or any of its Subsidiaries (excluding
items eliminated in consolidation), plus (iii) all cash and non-cash
dividends or other distributions paid, accrued or scheduled to be paid or
accrued, on any series of Disqualified Capital Stock of the Company during such
period to any Person other than such Person or its Subsidiaries (excluding
items eliminated in consolidation).


 


“Consolidated Interest Expense” means, for
any period, the sum of, without duplication determined on a consolidated basis
in accordance with GAAP:


 


(1)                                  the
aggregate of cash and non-cash interest expense of the Company and its
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP, including without limitation (whether or not interest expense in
accordance with GAAP):


 


(a)                                  any
amortization or accretion of debt discount or any interest paid on Indebtedness
on the Company in the form of additional Indebtedness,


 


(b)                                 any
amortization of deferred financing costs,


 


(c)                                  the
net costs under any interest or currency hedging obligations (including
amortization fees),


 


(d)                                 all
capitalized interest,


 


(e)                                  the
interest portion of any deferred payment obligation, and


 


(f)                                    commissions,
discounts and other fees and charges incurred in respect of letters of credit
or bankers’ acceptances;


 


(g)                                 any
interest expense on Indebtedness of another Person that is Guaranteed by the
Company or one of its Subsidiaries or secured by a Lien on the assets of the
Company or one of its Subsidiaries (whether or not such Guarantee or Lien is
called upon); and


 


(2)                                  the
interest component of capital leases paid, accrued and/or scheduled to be paid
or accrued by the Company and its Subsidiaries during such period.


 


4

















 


Notwithstanding
anything in the foregoing to the contrary, amortization of the original issue
discount of the Notes and the Warrants shall be excluded from the calculation
of “Consolidated Interest Expense”.


 


“Consolidated Net Income” means, for any
period, for the Company and its Subsidiaries on a consolidated basis, the net
income (or loss) of the Company and its Subsidiaries for that period,
determined in accordance with GAAP; provided, that there shall be
excluded therefrom:


 


(1)                                  net
after-tax gains (or losses) from Asset Sales or abandonment or reserves
relating thereto;


 


(2)                                  net
after-tax items classified as extraordinary gains (or losses);


 


(3)                                  the
net income (but not loss) of any Subsidiary to the extent that a corresponding
amount could not be distributed to the Company at the date of determination as
a result of any restriction pursuant to such Subsidiary’s charter or by-laws or
any law, regulation, agreement or judgment applicable to any such distribution;


 


(4)                                  any
increase (but not decrease) in net income attributable to minority interests in
any Subsidiary; and


 


any restoration to income of any contingency
reserve, except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the date of Closing.


 


“Consolidated Net Tangible Assets” means the
aggregate amount of assets of the Company less (a) all current liabilities
and (b) all goodwill, trademarks, patents, unamortized debt discount and
expense, organization or developmental expenses, and other like intangibles,
all as set forth on the most recent consolidated balance sheet of the Company
prepared in accordance with GAAP.


 


“Consolidated Subsidiary” means any
Subsidiary which in accordance with GAAP shall be consolidated with the Company
in any consolidated financial statements furnished to the holder of the Notes.


 


“Coverage Ratio Test” is defined in Section 10.2(a).


 


“Credit Agreement Refinancing Indebtedness”
means (i) the amount of Indebtedness (x) Incurred other than under
the Existing Credit Agreements or pursuant to the Notes and (y) applied
not more than sixty (60) days after such Incurrence to repay amounts
outstanding under the 2006 Credit Agreement, less (ii) amounts
re-borrowed under the 2006 Credit Agreement not more than sixty (60) after the
date of the repayment described in clause (i) and expended by the Company
for general corporate purposes.  Credit
Agreement Refinancing Indebtedness shall also include any refinancings,
replacements, renewals, extensions or amendments of Indebtedness constituting
Credit Agreement Refinancing Indebtedness.


 


5

















 


“Default” means an event or condition the
occurrence or existence of which would, with the lapse of time or the giving of
notice or both, become an Event of Default.


 


“Disclosure Documents” is defined in Section 5.5.


 


“Discounted Value” means, with respect to
the Called Principal of any Note, the amount obtained by discounting all
Remaining Scheduled Payments with respect to such Called Principal from January 15,
2012 to the Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount factor (applied
on the same periodic basis as that on which interest on the Notes is payable)
equal to the Reinvestment Yield with respect to such Called Principal.


 


“Disqualified Capital Stock” means any
portion of Capital Stock which, by its terms, or by the terms of any security
into which it is convertible or for which it is exchangeable, or upon the
happening of any event, matures or is mandatorily redeemable (other than solely
for Capital Stock which is not Disqualified Capital Stock) pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof in whole or in part, in each case prior to the date that is
ninety-one (91) days after the maturity of the Notes; provided, that Capital Stock issued to any
bona fide plan for the benefit of employees of the Company or its Subsidiaries
or by any such plan to such employees shall not constitute Disqualified Capital
Stock.


 


“Electronic Delivery” is defined in Section 7.1(a).


 


“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time in effect.


 


“ERISA Affiliate” means any trade or
business (whether or not incorporated) that is treated as a single employer
together with the Company under section 414 of the Code.


 


“Event of Default” is defined in Section 11.


 


“Excess Proceeds” is defined in Section 10.5(c).


 


“Existing Credit Agreements” means, (A)(i) that
certain Credit Agreement, dated as of May 28, 2004, as amended as of July 29,
2004 and as amended and restated as of September 7, 2006, among Company,
as the borrower, the several lenders from time to time party thereto, 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, through its stated maturity as of the date hereof
(the “2004 Credit Agreement”) and (ii) that
certain Credit Agreement, dated as of June 21, 2006, and as amended and
restated as of September 7, 2006, among the Company, as the borrower, the
several lenders from time to time party thereto, Bank


 


6

















 


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 “2006 Credit Agreement” and, together with
the 2004 Credit Agreement, the “Credit
Agreements”) and (B) any Permitted Refinancing Indebtedness of
the 2006 Credit Agreement.


 


“Existing Indebtedness” means Indebtedness
which is outstanding immediately prior to the Closing and remains outstanding
after the Closing and the application of the proceeds of the Notes.


 


“Family Member” is defined in Section 8.3(f).


 


“Family Trust” is defined in Section 8.3(f).


 


“Financial Statements” is defined in Section 5.5.


 


“Fixed Charge Coverage Ratio” means, for any
Person on any date, the ratio of (1) the Consolidated EBITDA for the then
most recent four fiscal quarters prior to such date to (2) the
Consolidated Fixed Charges during such four fiscal quarter period.


 


“Form 10-K” is defined in Section 7.1(b).


 


“Form 10-Q” is defined in Section 7.1(a).


 


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


 


“GAAP” means generally accepted accounting
principles as in effect from time to time in the United States or a successor
generally accepted accounting principle (including IFRS) upon a change from
GAAP to such successor principle, to the extent such change is required or
permitted by the promulgation of any rule, regulation, pronouncement or opinion
by the Financial Accounting Standards Board of the American Institute of
Certified Public Accountants or, if applicable, the SEC.


 


“Governmental Authority” means


 


(a)                                  the
government of


 


(i)                                     the
United States or any State or other political subdivision thereof, or


 


(ii)                                  any
other jurisdiction in which the Company or any Subsidiary conducts all or any
part of its business, or which asserts jurisdiction over any properties of the
Company or any Subsidiary, or


 


7
















 


(b)                                 any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of, or pertaining to, any such government.


 


“Guaranty” means, with respect to any Person, any obligation
(except the endorsement in the ordinary course of business of negotiable
instruments for deposit or collection) of such Person guaranteeing or in effect
guaranteeing any indebtedness, dividend or other obligation of any other Person
in any manner, whether directly or indirectly, including (without limitation)
obligations incurred through an agreement, contingent or otherwise, by such
Person:


 


(a)                                  to purchase
such indebtedness or obligation or any property constituting security therefor;


 


(b)                                 to advance or
supply funds (i) for the purchase or payment of such indebtedness or
obligation, or (ii) to maintain any working capital or other balance sheet
condition or any income statement condition of any other Person or otherwise to
advance or make available funds for the purchase or payment of such
indebtedness or obligation;


 


(c)                                  to lease
properties or to purchase properties or services primarily for the purpose of
assuring the owner of such indebtedness or obligation of the ability of any
other Person to make payment of the indebtedness or obligation; or


 


(d)                                 otherwise to
assure the owner of such indebtedness or obligation against loss in respect
thereof.


 


In any computation of the
indebtedness or other liabilities of the obligor under any Guaranty, the
indebtedness or other obligations that are the subject of such Guaranty shall
be assumed to be direct obligations of such obligor.


 


“Hedging Transaction” means any short sale (whether or not
against the box) or any purchase, sale or grant of any right (including any put
or call option, swap or other derivative transaction whether settled in cash or
securities) to obtain a “short” or “put equivalent position” with respect to
the Company’s Class A Common Stock.


 


“holder” means, with respect to any Note or any Warrant, the
Person in whose name such Note or Warrant, as applicable, is registered in the
register maintained by the Company pursuant to Section 13.1.


 


“IFRS” means the International Financial Reporting Standards
applicable to public companies generally, or authoritative interpretations
thereof, as applicable.


 


“Incur” is defined in Section 10.2(a).


 


“Indebtedness” with respect to any Person means, at any time,
without duplication,


 


(a)                                  its liabilities
for borrowed money and its redemption or other payment obligations at maturity
in respect of Disqualified Capital Stock;


 


8

















 


(b)                                 its liabilities
for the deferred purchase price of property acquired by such Person (excluding
accounts payable arising in the ordinary course of business but including all
liabilities created or arising under any conditional sale or other title
retention agreement with respect to any such property);


 


(c)                                  (i) all
liabilities appearing on its balance sheet in accordance with GAAP in respect
of Capital Leases and (ii) all liabilities which would appear on its balance
sheet in accordance with GAAP in respect of Synthetic Leases assuming such
Synthetic Leases were accounted for as Capital Leases;


 


(d)                                 all liabilities
for borrowed money secured by any Lien with respect to any property owned by
such Person (whether or not it has assumed or otherwise become liable for such
liabilities);


 


(e)                                  all its
liabilities in respect of letters of credit or instruments serving a similar
function issued or accepted for its account by banks and other financial institutions
(whether or not representing obligations for borrowed money);


 


(f)                                    the aggregate
Swap Termination Value of all Swap Contracts of such Person; and


 


(g)                                 any Guaranty of
such Person with respect to liabilities of a type described in any of clauses
(a) through (f) hereof.


 


Indebtedness of any Person
shall include all obligations of such Person of the character described in
clauses (a) through (g) to the extent such Person remains legally
liable in respect thereof notwithstanding that any such obligation is deemed to
be extinguished under GAAP.


 


“Interest Payment Date” is defined in Section 1.


 


“Investor Funding Fee” means the $4.5 million funding fee
payable to the Purchasers at Closing.


 


“Lien” is defined in Section 10.1.


 


“Lock-up Period” is defined in Section 13.4(a).


 


“Make-Whole Premium Amount” means, with respect to any Note, an
amount equal to the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of such Note over the
amount of such Called Principal; provided
that the Make-Whole Premium Amount may in no event be less than zero.


 


“Mandatory Sale” is defined in Section 10.5(a).


 


“Material” means material in relation to the business,
operations, affairs, financial condition, assets or properties of the Company
and its Subsidiaries taken as a whole.


 


9

















 


“Material Adverse Effect” means a material adverse effect on (i) the
business, results of operation or financial condition of the Company and its
Consolidated Subsidiaries taken as a whole; provided,
however, that Material Adverse
Effect shall not be deemed to include the effects of (A) any facts,
circumstances, events, changes or occurrences generally affecting businesses,
industries and markets in which the Company operates (including, without
limitation, changes generally in prevailing interest rates, credit availability
and liquidity, currency exchange rates and price levels or trading volumes in
the United States or foreign markets), companies engaged in such businesses,
industries or markets or the economy, including effects on such businesses,
industries, markets or economy resulting from any regulatory or political
conditions or developments, or any outbreak or escalation of hostilities, declared
or undeclared acts of war or terrorism, (B) changes or proposed changes in
GAAP applicable to public companies generally (or authoritative interpretations
thereof), (C) changes or proposed changes in laws of general applicability
or related policies or interpretations of Governmental Authorities (in the case
of each of clause (A), (B) and (C), other than facts, circumstances,
events, changes, effects or occurrences to the extent that such facts,
circumstances, events, changes, effects or occurrences have a
disproportionately adverse effect on the Company and its Consolidated
Subsidiaries relative to comparable U.S. public companies), or (D) changes in
the market price or trading volume of the Common Stock or any other equity,
equity-related or debt securities of the Company (it being understood and
agreed that the exception set forth in this clause (D) does not apply to
the underlying reason giving rise to or contributing to any such change); or (ii) the
ability of the Company timely to consummate the sale of the Notes and the
Warrants and the other transactions contemplated by this Agreement.


 


“Maximum Rate” is defined in Section 22.10.


 


“Multiemployer Plan” means any Plan that is a “multiemployer
plan” (as such term is defined in section 4001(a)(3) of ERISA).


 


“Net Proceeds” means, with respect to any Asset Sale, the
aggregate proceeds in the form of cash or cash equivalents, including payments
in respect of deferred payment obligations when received in the form of cash or
cash equivalents, received by the Company or any of its Subsidiaries, net of
the direct costs relating to such Asset Sale, including legal, accounting and
investment banking fees, payments made in order to obtain a necessary consent
or required by applicable law, and brokerage and sales commissions, severance
or employee termination expenses incurred as a result thereof, any relocation
expenses incurred as a result thereof, other fees and expenses, including title
and recordation expenses, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of principal of,
premium, if any, and interest on Indebtedness required to be paid as a result
of such transaction and any deduction of appropriate amounts to be provided by
the Company or any of its Subsidiaries as a reserve in accordance with GAAP
against any liabilities associated with the asset disposed of in such
transaction and retained by the Company or any of its Subsidiaries after such
sale or other disposition thereof, including pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations associated with such transaction.


 


10

















 


“Note Register” is defined in Section 13.1.


 


“Notes” is defined in Section 1.


 


“Note Purchaser” is defined in the first paragraph of this
Agreement.


 


“Officer’s Certificate” means a certificate of a Senior
Financial Officer or of any other officer of the Company whose responsibilities
extend to the subject matter of such certificate.


 


“Pari Passu Indebtedness” is defined in Section 10.5(c).


 


“PBGC” means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA or any successor thereto.


 


“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
Company or any ERISA Affiliate or to which the Company 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 (5) plan
years.


 


“Permitted Holders” is defined in Section 8.3(f).


 


“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;


 


(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 Company or to a Consolidated Subsidiary of the
Company;


 


(f)                                    Liens to which
the Required Holders of the Notes have given their consent in writing;


 


11

















 


(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
FRB;


 


(h)                                 purchase money
security interests covering real or personal property hereafter acquired, provided that neither the Company 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 Company, or is
merged into the Company 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 Company 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)                                     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 Company or any of its Subsidiaries;


 


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


 


(n)                                 Liens securing
Attributable Indebtedness Incurred in connection with Sale and Leaseback
Transactions to the extent the aggregate sales proceeds received therefrom do
not in the aggregate, and the aggregate amount of Attributable Indebtedness in
respect thereof at the time of the Incurrence of each such Attributable
Indebtedness does not, exceed $225,000,000 (plus any capitalized interest or
payment-in-kind interest accrued thereon) with respect to: (i) the Company’s
and its Subsidiaries’ interests in the real property, fixtures and personal
property constituting the Company’s headquarters, located at 620 Eighth Avenue
and/or (ii) the Company’s and its Subsidiaries’ interests in the real
property, fixtures and personal property constituting the College Point
Project; and


 


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


 


12

















 


“Permitted Refinancing Indebtedness” means any Indebtedness of
the Company or any of its Subsidiaries issued in exchange for, or the net
proceeds of which are used to Refinance other Indebtedness of any such Persons;
provided, however, that (i) the principal amount of
such Permitted Refinancing Indebtedness does not exceed the principal amount
plus accrued interest, prepayment penalties, premiums and other similar
amounts, if any, of the Indebtedness so Refinanced (plus the amount of
reasonable fees and expenses incurred in connection therewith); (ii) such
Permitted Refinancing Indebtedness has a final maturity date on or later than
the final maturity date of, and has a Weighted Average Life to Maturity equal
to or greater than the Weighted Average Life to Maturity of, at the time of
such Refinancing, the Indebtedness being Refinanced; and (iii) if the
Indebtedness being Refinanced is contractually subordinated in right of payment
to the Notes, such Permitted Refinancing Indebtedness is subordinated in right
of payment to the Notes on terms at least as favorable as determined in good
faith by the Board of Directors to the holders of the Notes as those contained
in the documentation governing the Indebtedness being Refinanced.  For the purposes hereof, in determining
whether any replacement of the 2006 Credit Agreement (or the subsequent
replacement of any such replacement facility) constitutes Permitted Refinancing
Indebtedness in accordance with the foregoing proviso, all committed amounts
under the 2006 Credit Agreement (or successor facility being replaced) and
under the proposed replacement facility shall be deemed outstanding.


 


“Permitted Transferee” is defined in Section 13.4(c).


 


“Person” means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, business
entity or Governmental Authority.


 


“PIK Amount” is defined in Section 1.


 


“Plan” means an “employee benefit plan” (as defined in section
3(3) of ERISA) subject to Title I of ERISA that is or, within the
preceding five years, has been established or maintained, or to which
contributions are or, within the preceding five years, have been made or
required to be made, by the Company or any ERISA Affiliate or with respect to
which the Company or any ERISA Affiliate may have any liability.


 


“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.


 


“Preferred Stock” means any class of Capital Stock of a Person
that is preferred over any other class of Capital Stock (or similar equity
interests) of such Person as to the payment of dividends or the payment of any
amount upon liquidation or dissolution of such Person.


 


“property” or “properties”
means, unless otherwise specifically limited, real or personal property of any
kind, tangible or intangible, choate or inchoate.


 


“Proprietary Rights” is defined in Section 5.19.


 


13

















 


“Provided Reports” is defined in Section 7.1(c).


 


“Purchaser” is defined in the first paragraph of this
Agreement.


 


“Qualified Institutional Buyer” means any Person who is a “qualified
institutional buyer” within the meaning of such term as set forth in Rule 144A(a)(1) under
the Securities Act.


 


“Refinance” means, in respect of any security or Indebtedness,
to refinance, extend, renew, refund, replace, repay, prepay, redeem, defease or
retire, or to issue a security or Indebtedness in exchange or replacement for,
such security or Indebtedness in whole or in part. “Refinanced” and “Refinancing”
shall have correlative meanings.


 


“Registration Rights Agreement” is defined in Section 4(A).12.


 


“Regulatory Approvals” with respect to any holder of the
Warrants, means, to the extent applicable and required to permit any holder of
the Warrants to exercise a Warrant for shares of Class A Common Stock and
to own such Class A Common Stock without the holder of such Warrant being
in violation of applicable laws, rules or regulations, the receipt of any
necessary approvals and authorizations of, filings and registrations with,
notifications to, or expiration or termination of any applicable waiting period
under, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
and the rules and regulations thereunder (the “HSR Act”); provided,
however, if any holder of a
Warrant provides a certificate in a form satisfactory to the Company
representing that such holder of a Warrant is acquiring such shares of Class A
Common Stock in reliance upon the exemption provided in Section 802.9 or Section 802.64
of the rules promulgated under the HSR Act, such holder of a Warrant may
exercise such Warrant without filing any notification and report forms under
the HSR Act.


 


“Reinvestment Yield” means, with respect to the Called
Principal of any Note, 0.50% over the yield to maturity implied by (i) the
yields reported as of 10:00 a.m. (New York City time) on the second
Business Day preceding the Settlement Date with respect to such Called
Principal, on the display designated as “Page PX1” (or such other display
as may replace Page PX1 on Bloomberg Financial Markets (“Bloomberg”) or,
if Page PX1 (or its successor screen on Bloomberg) is unavailable, the
Telerate Access Service screen which corresponds most closely to Page PX1
for the most recently issued actively traded U.S. Treasury securities having a
maturity equal to the Remaining Average Life of such Called Principal as of
such Settlement Date, or (ii) if such yields are not reported as of such
time or the yields reported as of such time are not ascertainable (including by
way of interpolation), the Treasury Constant Maturity Series Yields
reported, for the latest day for which such yields have been so reported as of
the second Business Day preceding the Settlement Date with respect to such
Called Principal, in Federal Reserve Statistical Release H.15 (519) (or any
comparable successor publication) for actively traded U.S. Treasury securities
having a constant maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date. 
Such implied yield will be determined, if necessary, by (a) converting
U.S. Treasury bill quotations to bond equivalent yields in accordance with
accepted financial practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with the maturity closest to and greater
than such 


 


14

















 


Remaining Average Life and (2) the
actively traded U.S. Treasury security with the maturity closest to and less
than such Remaining Average Life.  The
Reinvestment Yield shall be rounded to the number of decimal places as appears
in the interest rate of the applicable Note.


 


“Related Fund” means, with respect to any holder of any Note or
any holder of any Warrant, any fund or entity that (i) invests in Securities or
bank loans, and (ii) is advised or managed by such holder, the same
investment advisor as such holder or by an affiliate of such holder or such
investment advisor.


 


“Remaining Average Life” means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth year)
obtained by dividing (i) such Called Principal into (ii) the sum of the
products obtained by multiplying (a) the principal component of each
Remaining Scheduled Payment with respect to such Called Principal by (b) the
number of years (calculated to the nearest one-twelfth year) that will elapse
between the Settlement Date with respect to such Called Principal and January 15,
2012.


 


“Remaining Scheduled Payments” means, with respect to the
Called Principal of any Note, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date assuming the
Called Principal was prepaid in full pursuant to Section 8.2(b) at
the Applicable Prepayment Premium on January 15, 2012, provided that if such Settlement Date is
not a date on which interest payments are due to be made under the terms of the
Notes, then the amount of the next succeeding scheduled interest payment will
be reduced by the amount of interest accrued to such Settlement Date and
required to be paid on such Settlement Date pursuant to Section 12.1.


 


“Required Holders” means, at any time, the holders of more than
50% in principal amount of the Notes at the time outstanding (exclusive of
Notes then owned by the Company or any of its Affiliates).


 


“Responsible Officer” means any Senior Financial Officer and
any other officer of the Company with responsibility for the administration of
the relevant portion of this Agreement.


 


“Restricted Guaranties” means, Indebtedness or other
obligations of the Company or any of its Consolidated Subsidiaries consisting
of:  (i) guarantees, directly or
indirectly, of any Indebtedness or other obligations of Persons other than the
Company and its Subsidiaries, or (ii) contracts to purchase of otherwise
acquire, or otherwise assure a creditor against loss in respect of any
Indebtedness or other obligations of Persons other than the Company and its
Subsidiaries.


 


“Sale and
Leaseback Transaction” is defined in Section 10.3.


 


“SEC” shall mean the Securities and Exchange Commission of the
United States, or any successor thereto.


 


“Section 8.3 Notice and Offer to Prepay” is defined in Section 8.3(b).


 


15

















 


“Section 8.3 Special Prepayment Date” is defined in Section 8.3(b).


 


“Securities” or “Security”
shall have the meaning specified in Section 2(1) of the Securities
Act.


 


“Securities Act” means the Securities Act of 1933, as amended
from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.


 


“Senior Financial Officer” means the chief financial officer,
principal accounting officer, treasurer or comptroller of the Company.


 


“Settlement Date” means, with respect to the Called Principal
of any Note, the date on which such Called Principal has become or is declared
to be immediately due and payable pursuant to Section 12.1, as the
context requires.


 


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


 


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


 


(b)                                 held seven
percent (7%) or more of the consolidated assets of the Company and its
Consolidated Subsidiaries as at the end of such fiscal year.


 


“620 Eighth Avenue” means the interest of the Company or any
Subsidiary in the land located at 620 Eighth Avenue, New York, New York and the
office building and fixtures of the Company or any Subsidiaries located
thereon.


 


“Stockholders’ Equity” means, (i) as of September 28,
2008, $1,701,943,000 and (ii) for any date after September 28, 2008,
the sum for the Company and its Consolidated Subsidiaries on a consolidated
basis, of the amount in clause (i), plus any changes in 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,
in each case, subsequent to September 28, 2008, and recorded in accordance
with GAAP.


 


“Subject Transaction” is defined in Section 10.2(a).


 


“Subsidiary” means, as to any Person, any other Person in which
such first Person or one or more of its Subsidiaries or such first Person and
one or more of its Subsidiaries owns sufficient equity or voting interests to
enable it or them (as a group) ordinarily, in the absence of contingencies, to
elect a majority of the directors (or Persons performing similar functions) of
such second Person, and any partnership or joint venture if more than a 50%
interest in the profits or capital thereof is owned by such first Person or one
or more of its Subsidiaries or such first Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of
its


 


16

















 


Subsidiaries).  Unless the context otherwise clearly
requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the
Company.


 


“Swap Contract” means (a) any and all interest rate swap
transactions, basis swap transactions, basis swaps, credit derivative transactions,
forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond
price or bond index swaps or options or forward foreign exchange transactions,
cap transactions, floor transactions, currency options, spot contracts or any
other similar transactions or any of the foregoing (including, but without
limitation, any options to enter into any of the foregoing), and (b) any
and all transactions of any kind, and the related confirmations, which are
subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement.


 


“Swap Termination Value” means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or
after the date such Swap Contracts have been closed out and termination value(s) determined
in accordance therewith, such termination value(s), and (b) for any date
prior to the date referenced in clause (a), the amounts(s) determined as
the mark-to-market values(s) for such Swap Contracts, as determined based
upon one or more mid-market or other readily available quotations provided by
any recognized dealer in such Swap Contracts.


 


“Synthetic Lease” means, at any time, any lease (including
leases that may be terminated by the lessee at any time) of any property (a) that
is accounted for as an operating lease under GAAP and (b) in respect of
which the lessee retains or obtains ownership of the property so leased for
U.S. federal income tax purposes, other than any such lease under which such
Person is the lessor.


 


“Tax Information” is defined in Section 4(B).4.


 


“Taxes” means any present or future taxes of any nature
(including interest, penalties and additions thereto) that are imposed by any
Governmental Authority.


 


“Total Commitments” shall mean, (i) in the case of the 2004
Credit Agreement, for so long as it remains in effect, the aggregate amount of
the commitments in place thereunder as of the date hereof and, (ii) in the
case of the 2006 Credit Agreement, the greater of (x) the aggregate amount
of the commitments in place thereunder as of the date hereof (equal to
$400,000,000) less all Credit Agreement Refinancing Indebtedness outstanding at
any time and (y) $150,000,000.  All
outstanding Indebtedness under the Existing Credit Agreements and all
outstanding Indebtedness that constitutes Credit Agreement Refinancing
Indebtedness, regardless of the provision or provisions of Section 10.2
that may allow such Indebtedness to be Incurred, shall in all instances be
applied to reduce Total Commitments under clause (ii) of the immediately
preceding sentence.


 


“Transfer” is defined in Section 13.4(a).


 


17

















 


“U.S.” or “United States”
means the United States of America.


 


“USA Patriot Act” means United States Public Law 107-56,
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from
time to time, and the rules and regulations promulgated thereunder from
time to time in effect.


 


“Warrant” is defined in Section 1.


 


“Warrant Purchaser” is defined in the first paragraph of this
Agreement.


 


“Warrant Purchase Price” is defined in Section 2.


 


“Warrant Shares” is defined in Section 13.4(a).


 


“Weighted Average Life to Maturity” means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the
sum of the products obtained by multiplying (A) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect thereof, by (B) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then
outstanding principal amount of such Indebtedness.


 


“Wholly-Owned Subsidiary” means, at any time, any Subsidiary
one hundred percent (100%) of all of the equity interests (except directors’
qualifying shares) and voting interests of which are owned by any one or more
of the Company and the Company’s other Wholly-Owned Subsidiaries at such time.


 


18
















 


EXHIBIT 1


 


FORM OF NOTE


 


THE SECURITIES
REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION
STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR
SUCH LAWS.


 


THIS
INSTRUMENT IS ISSUED PURSUANT TO AND SUBJECT TO THE RESTRICTIONS ON TRANSFER
AND OTHER PROVISIONS OF A SECURITIES PURCHASE AGREEMENT, DATED JANUARY 19,
2009, BETWEEN THE ISSUER OF THESE SECURITIES AND THE INVESTOR REFERRED TO
THEREIN, A COPY OF WHICH IS ON FILE WITH THE ISSUER.  THE SECURITIES REPRESENTED BY THIS INSTRUMENT
MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID
AGREEMENT.  ANY SALE OR OTHER TRANSFER
NOT IN COMPLIANCE WITH SAID AGREEMENT WILL BE VOID.


 


PURSUANT TO
U.S. TREASURY REGULATION SECTION 1.1275-3, THE COMPANY WILL MAKE AVAILABLE
TO A HOLDER OF THIS NOTE UPON REQUEST THE ISSUE PRICE, THE AMOUNT OF ORIGINAL
ISSUE DISCOUNT, THE ISSUE DATE AND THE YIELD TO MATURITY FOR THIS NOTE.


 


THE NEW YORK TIMES COMPANY


 


14.053% SENIOR
NOTE DUE JANUARY 15, 2015


 


	
  No. [          ]

  	
   

  	
  [Date]

  
	
  $[              ]

  	
   

  	
   

  



 


For Value Received, the undersigned, The New York Times Company (herein
called the “Company”), a corporation organized and existing under the laws of
the State of New York, hereby promises to pay to
[                        ],
or registered assigns, the principal sum of
[                                          ]
Dollars (or so much thereof as shall not have been prepaid) on
[                  ,
        ].  This Note bears interest from the date hereof
until this Note shall become due and payable in accordance with the terms
hereof (whether at maturity, by acceleration or otherwise) or of the Securities
Purchase Agreement (as defined below) at the rate of fourteen and 53/1000
percent (14.053%) per annum.  Interest at
the rate of eleven and 53/1000 percent 


 


1

















 


(11.053%) per
annum shall be payable on this Note in cash. 
Interest at the rate of three percent (3%) per annum shall be payable by
issuing additional Notes of like tenor in the principal amount of such interest
(the amount of such interest, the “PIK Amount”)
and shall be capitalized on each Interest Payment Date (as defined below)  by the increase of the principal amount
outstanding under this Note by the PIK Amount as evidenced in the Note
Register; provided, that, at the
election of the Company, and on prior notice to the holders of the Notes, such
interest may be paid in cash.  Interest
under this Note is due, in each case, semiannually in arrears on the fifteenth
(15th) day of January and July in each year (each an “Interest Payment Date”), commencing July 15,
2009.  The Company shall also pay, on the
first Interest Payment Date occurring after the fifth (5th) anniversary of the
Closing Date and on each subsequent Interest Payment Date, a portion of the PIK
Amount (and, if necessary, a portion of the original principal amount of the
Notes) in an amount sufficient, but not in excess of the amount necessary, to
ensure that the Notes will not be an “applicable high yield discount obligation”
within the meaning of Section 163(i)(1) of the Code.  Interest on this Note shall be computed on
the basis of a three hundred sixty-five (365) day year.  This Note matures on January 15, 2015.


 


Payments of principal of, interest on and any Applicable Prepayment
Premium, Change of Control Offer Amount, Make-Whole Premium Amount or Asset
Sale Amount with respect to this Note are to be made in lawful money of the
United States at New York, New York or at such other place as the Company shall
have designated by written notice to the holder of this Note as provided in the
Securities Purchase Agreement referred to below.


 


This Note is one of a series of Notes (herein called the “Notes”)
issued pursuant to the Securities Purchase Agreement, dated as of January 19,
2009 (as from time to time amended, the “Securities Purchase Agreement”),
between the Company and the respective Purchasers named therein and is entitled
to the benefits thereof.  Each holder of
this Note will be deemed, by its acceptance hereof, to have (i) agreed to
the confidentiality provisions set forth in Section 20 of the
Securities Purchase Agreement and (ii) made the representation set forth
in Section 6.1 of the Securities Purchase Agreement.  Unless otherwise indicated, capitalized terms
used in this Note shall have the respective meanings ascribed to such terms in
the Securities Purchase Agreement.


 


This Note is a registered Note and, as provided in the Securities
Purchase Agreement, upon surrender of this Note for registration of transfer,
duly endorsed, or accompanied by a written instrument of transfer duly
executed, by the registered holder hereof or such holder’s attorney duly
authorized in writing, a new Note for a like principal amount will be issued
to, and registered in the name of, the transferee.  Prior to due presentment for registration of
transfer, the Company may treat the person in whose name this Note is
registered as the owner hereof for the purpose of receiving payment and for all
other purposes, and the Company will not be affected by any notice to the
contrary.


 


This Note is subject to optional prepayment, in whole or from time to
time in part, at the times and on the terms specified in the Securities
Purchase Agreement, but not otherwise.


 


2

















 


If an Event of Default occurs and is continuing, the principal of this
Note may be declared or otherwise become due and payable in the manner, at the
price (including any applicable Make-Whole Premium Amount, Applicable
Prepayment Premium or Asset Sale Amount) and with the effect provided in the
Securities Purchase Agreement.


 


3

















 


This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of New York
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.


 


	
   

  	
  THE NEW YORK
  TIMES COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


4
















 


Exhibit 2


 


[FORM OF WARRANTS]


 


THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT
WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT OR SUCH LAWS.


 


THIS INSTRUMENT IS ISSUED PURSUANT TO AND SUBJECT TO THE RESTRICTIONS
ON TRANSFER AND OTHER PROVISIONS OF A SECURITIES PURCHASE AGREEMENT, DATED
JANUARY 19, 2009, BETWEEN THE ISSUER OF THESE SECURITIES AND THE PURCHASERS
REFERRED TO THEREIN, A COPY OF WHICH IS ON FILE WITH THE ISSUER.  THE SECURITIES REPRESENTED BY THIS INSTRUMENT
MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID
AGREEMENT.  ANY SALE OR OTHER TRANSFER
NOT IN COMPLIANCE WITH SAID AGREEMENT WILL BE VOID.


 


WARRANT No. [   ]


 


to purchase


 


Shares of Class A Common Stock


 


THE NEW YORK TIMES COMPANY

a New York Corporation


 


Issue Date:  January 21,
2009


 


1.                                       Definitions.  Unless the context otherwise requires, when
used herein the following terms shall have the meanings indicated.


 


“Affiliate” has the meaning ascribed to it in the Securities
Purchase Agreement.


 


“Appraisal Procedure” means a procedure whereby two independent
appraisers, one chosen by the Corporation and one by the Warrantholder (or if
there is more than one Warrantholder, a majority in interest of
Warrantholders), shall mutually agree upon the determinations then the subject
of appraisal.  Each party shall deliver a
notice to the other appointing its appraiser within 15 days after the Appraisal
Procedure is invoked.  If within 30 days
after appointment of the two appraisers they are unable to agree upon the
amount in question, a third independent appraiser shall be chosen within 10
days thereafter by the mutual consent of such first two appraisers or, if such
two first appraisers fail to agree upon the appointment of a third appraiser, such
appointment shall be made by the American Arbitration Association, or any
organization successor thereto, from a panel of arbitrators having experience
in appraisal of the subject matter to be appraised.  The decision of the third appraiser so


 

















 


appointed and chosen shall be given within 30 days after the selection
of such third appraiser.  If three
appraisers shall be appointed and the determination of one appraiser is
disparate from the middle determination by more than twice the amount by which
the other determination is disparate from the middle determination, then the
determination of such appraiser shall be excluded, the remaining two
determinations shall be averaged and such average shall be binding and
conclusive upon the Corporation and the Warrantholder; otherwise, the average
of all three determinations shall be binding upon the Corporation and the
Warrantholder.  The costs of conducting
any Appraisal Procedure shall be borne by the Corporation.


 


“Board of Directors” means the board of directors of the
Corporation, including any duly authorized committee thereof.


 


“Business Combination” means a merger, consolidation, statutory
share exchange or similar transaction that requires the approval of the
Corporation’s stockholders.


 


“Business Day” means any day except Saturday, Sunday and any day
which shall be a legal holiday or a day on which banking institutions in the
State of New York generally are authorized or required by law or other
governmental actions to close.


 


“Capital Stock” means (A) with respect to any Person that
is a corporation or company, any and all shares, interests, participations or
other equivalents (however designated) of capital or capital stock of such
Person and (B) with respect to any Person that is not a corporation or company,
any and all partnership or other equity interests of such Person.


 


“Common Stock” means the common stock of the Corporation, which
as of the date hereof consists of the Class A Common Stock and the Class B
Common Stock.


 


“Class A Common Stock” means the Corporation’s Class A
Common Stock, $0.10 par value per share.


 


“Class B Common Stock” means the Corporation’s Class B
Common Stock, $0.10 par value per share.


 


“Corporation” means The New York Times Company, a New York
corporation.


 


“Exchange Act” means the Securities Exchange Act of 1934, as
amended, or any successor statute, and the rules and regulations
promulgated thereunder.


 


“Exercise Price” means $6.3572.


 


“Expiration Time” has the meaning set forth in Section 3.


 


“Fair Market Value” means, with respect to any security or other
property, the fair market value of such security or other property as
determined by the Board of Directors, acting in good faith.  If the Warrantholder objects in writing to
the Board of Directors’ calculation of fair market value within 10 days of
receipt of written notice thereof and the Warrantholder and the Corporation are
unable to agree on fair market value during the 10-day period following the
delivery of the Warrantholder’s objection, the Appraisal Procedure may be
invoked by either


 


2

















 


party to determine Fair Market Value by delivering written notification
thereof not later than the 30th day after delivery of the Warrantholder’s
objection.


 


“Market Price” means, with respect to the Common Stock, on any
given day, the last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices, regular
way, of the shares of such Common Stock on the New York Stock Exchange on such
day.  If such Common Stock is not traded
on the New York Stock Exchange on any date of determination, the Market Price
of such Common Stock on such date of determination means the closing sale price
as reported in the composite transactions for the principal U.S. national or
regional securities exchange on which such Common Stock is so listed or quoted,
or, if no closing sale price is reported, the last reported sale price on the
principal U.S. national or regional securities exchange on which such Common
Stock is so listed or quoted, or if such Common Stock is not so listed or
quoted on a U.S. national or regional securities exchange, the last quoted bid
price for such Common Stock in the over-the-counter market as reported by Pink
Sheets LLC or similar organization, or, if that bid price is not available, the
Market Price of such Common Stock on that date shall mean the Fair Market Value
per share as determined by the Board of Directors in reliance on an opinion of
a nationally recognized independent investment banking firm retained by the
Corporation for this purpose and certified in a resolution sent to the
Warrantholder.  For the purposes of
determining the Market Price of such Common Stock on the “trading day”
preceding, on or following the occurrence of an event, (i) that trading
day shall be deemed to commence immediately after the regular scheduled closing
time of trading on the New York Stock Exchange or, if trading is closed at an
earlier time, such earlier time and (ii) that trading day shall end at the
next regular scheduled closing time, or if trading is closed at an earlier
time, such earlier time (for the avoidance of doubt, and as an example, if the
Market Price is to be determined as of the last trading day preceding a specified
event and the closing time of trading on a particular day is 4:00 p.m. and
the specified event occurs at 5:00 p.m. on that day, the Market Price
would be determined by reference to such 4:00 p.m. closing price).


 


“Ordinary Cash Dividends” means a regular quarterly cash
dividend on shares of Common Stock out of surplus or net profits legally
available therefor (determined in accordance with generally accepted accounting
principles in effect from time to time), provided that Ordinary Cash Dividends
shall not include any cash dividends paid subsequent to December 28, 2008
to the extent the aggregate dividend paid on all Common Stock in any quarter
exceeds the greater of (i) the aggregate dividend that would be paid on
all Common Stock in that quarter at a rate of $0.06 per share or (ii) (x) 80%
of accumulated earnings since December 29, 2008 (determined in accordance
with generally accepted accounting principles in effect from time to time) less
(y) the amount of aggregate dividends on Common Stock and on all preferred
stock of the Corporation that is classified as equity under such generally
accepted accounting principles paid since December 29, 2008, provided,
however, that if in any year the amount of the Corporation’s capital
expenditures exceeds the amount of the Corporation’s depreciation, then the
calculation for such year of accumulated earnings shall be determined by
deducting the amount of such capital expenditures rather than the amount of
depreciation.


 


“Per Share Fair Market Value” has the meaning set forth in Section 13(C).


 


“Permitted Transactions” has the meaning set forth in Section 13(B).


 


3

















 


“Person” has the meaning given to it in Section 3(a)(9) of
the Exchange Act and as used in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act.


 


“Pro Rata Repurchases” means any purchase of shares of Class A
Common Stock by the Corporation or any Affiliate thereof pursuant to (i) any
tender offer or exchange offer subject to Section 13(e) or 14(e) of
the Exchange Act or Regulation 14E promulgated thereunder or (ii) any
other offer available to substantially all holders of Class A Common
Stock, in the case of both (i) or (ii), whether for cash, shares of
Capital Stock of the Corporation, other securities of the Corporation,
evidences of indebtedness of the Corporation or any other Person or any other
property (including, without limitation, shares of Capital Stock, other
securities or evidences of indebtedness of a subsidiary), or any combination
thereof, effected while this Warrant is outstanding.  The “Effective Date” of a Pro Rata
Repurchase shall mean the date of acceptance of shares for purchase or exchange
by the Corporation under any tender or exchange offer which is a Pro Rata
Repurchase or the date of purchase with respect to any Pro Rata Purchase that
is not a tender or exchange offer.


 


“Regulatory Approvals” with respect to the Warrantholder, means,
to the extent applicable and required to permit the Warrantholder to exercise
this Warrant for shares of Class A Common Stock and to own such Class A
Common Stock without the Warrantholder being in violation of applicable law, rule or
regulation, the receipt of any necessary approvals and authorizations of,
filings and registrations with, notifications to, or expiration or termination
of any applicable waiting period under, the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations
thereunder (the “HSR Act”); provided, however, if the
Warrantholder provides a certificate in a form satisfactory to the Corporation
representing that Warrantholder is acquiring such shares of Class A Common
Stock in reliance upon the exemption provided in Section 802.9 or Section 802.64
of the rules promulgated under the HSR Act, the Warrantholder may exercise
this Warrant without filing any notification and report forms under the HSR
Act.


 


“SEC” means the U.S. Securities and Exchange Commission.


 


“Securities Act” means the Securities Act of 1933, as amended,
or any successor statute, and the rules and regulations promulgated
thereunder.


 


“Securities Purchase Agreement” means the Securities Purchase
Agreement, dated January 19, 2009, as amended from time to time, among the
Corporation, Inmobiliaria Carso, S.A. de C.V. and Banco Inbursa S.A., Institución
de Banca Múltiple, Grupo Financiero Inbursa including all schedules and
exhibits thereto.


 


“Shares” has the meaning set forth in Section 2.


 


“Warrantholder” has the meaning set forth in Section 2.


 


“Warrant” means this Warrant, issued pursuant to the Securities
Purchase Agreement.


 


2.                                       Number
of Shares; Exercise Price.  This
certifies that, for value received, [NAME OF HOLDER] or its permitted assigns
(the “Warrantholder”) is entitled, upon the terms and


 


4

















 


subject to the conditions hereinafter set
forth, to acquire from the Corporation, in whole or in part, after the receipt
of all applicable Regulatory Approvals, up to an aggregate of Fifteen Million
Nine Hundred Thousand (15,900,000) fully paid and nonassessable shares of Class A
Common Stock, at a purchase price per share of Class A Common Stock equal
to the Exercise Price.  The number of
shares of Class A Common Stock (the “Shares”) and the Exercise
Price are subject to adjustment as provided herein, and all references to “Class A
Common Stock,” “Shares” and “Exercise Price” herein shall be deemed to include
any such adjustment or series of adjustments.


 


3.                                       Exercise of
Warrant; Term.  Subject to Section 2,
to the extent permitted by applicable laws and regulations, the right to
purchase the Shares represented by this Warrant is exercisable, in whole or in
part by the Warrantholder, at any time or from time to time after the execution
and delivery of this Warrant by the Corporation on the date hereof, but in no
event later than 5:00 p.m., New York City time, January 15, 2015 (the
“Expiration Time”), by (A) the surrender of this Warrant and Notice
of Exercise annexed hereto, duly completed and executed on behalf of the
Warrantholder, at the principal executive office of the Corporation located at
620 Eighth Avenue,  New York, New York,
10018 (or such other office or agency of the Corporation in the United States
as it may designate by notice in writing to the Warrantholder at the address of
the Warrantholder appearing on the books of the Corporation), and (B) payment
of the Exercise Price for the Shares thereby purchased at the election of the
Warrantholder in one of the following manners:


 


(A)                              by tendering in cash, by certified or cashier’s
check payable to the order of the Corporation, or by wire transfer of
immediately available funds to an account designated by the Corporation, or


 


(B)                                by having the Corporation withhold shares of Class A
Common Stock issuable upon exercise of the Warrant equal in value to the
aggregate Exercise Price as to which this Warrant is so exercised based on the
Market Price of the Class A Common Stock on the trading day prior to the
date on which this Warrant and the Notice of Exercise are delivered to the
Corporation.


 


If the Warrantholder does not exercise this Warrant in its entirety,
the Warrantholder will be entitled to receive from the Corporation within a
reasonable time, and in any event not exceeding three Business Days, a new
warrant in substantially identical form for the purchase of that number of
Shares equal to the difference between the number of Shares subject to this
Warrant and the number of Shares as to which this Warrant is so exercised.  Notwithstanding anything in this Warrant to
the contrary, the Warrantholder hereby acknowledges and agrees that its
exercise of this Warrant for Shares is subject to the condition that the
Warrantholder will have first received any applicable Regulatory Approvals.


 


Notwithstanding the foregoing, in the case of any Warrantholder other
than the Warrant Purchasers and their Permitted Transferees under the
Securities Purchase Agreement, the Corporation shall not be obligated to
deliver any Shares pursuant to the exercise of this Warrant unless the
Corporation reasonably determines that: (i) a registration statement under
the Securities Act with respect to the Class A Common Stock issuable upon
the exercise hereof is


 


5

















 


effective, or (ii) the exercise of this Warrant is exempt from the
registration requirements of the Securities Act.


 


4.                                       Issuance
of Shares; Authorization; Listing. 
Subject to Section 8, certificates for Shares issued upon exercise
of this Warrant will be issued in such name or names as the Warrantholder may
designate and will be delivered to such named Person or Persons within a
reasonable time, not to exceed three Business Days after the date on which this
Warrant has been duly exercised in accordance with the terms of this
Warrant.  The Corporation hereby
represents and warrants that any Shares issued upon the exercise of this
Warrant in accordance with the provisions of Section 3 will be duly and
validly authorized and issued, fully paid and nonassessable and free from all
taxes, liens and charges (other than liens or charges created by the
Warrantholder, except as otherwise provided herein, income and franchise taxes
incurred in connection with the exercise of the Warrant or taxes in respect of
any transfer occurring contemporaneously therewith).  The Corporation agrees that the Shares so
issued will be deemed to have been issued to the Warrantholder as of the close
of business on the date on which this Warrant and payment of the Exercise Price
are delivered to the Corporation in accordance with the terms of this Warrant, notwithstanding
that the stock transfer books of the Corporation may then be closed or
certificates representing such Shares may not be actually delivered on such
date.  The Corporation will at all times
reserve and keep available, out of its authorized but unissued Class A
Common Stock, solely for the purpose of providing for the exercise of this
Warrant, the aggregate number of shares of Class A Common Stock issuable
upon exercise of this Warrant.  The
Corporation will (A) procure, at its sole expense, the listing of the
Shares issuable upon exercise of this Warrant, subject to issuance or notice of
issuance, on all principal stock exchanges on which the Class A Common
Stock is then listed or traded and (B) maintain such listings of such
Shares at all times after issuance.  The
Corporation will use reasonable best efforts to ensure that the Shares may be
issued without violation of any applicable law or regulation or of any
requirement of any securities exchange on which the Shares are listed or
traded.  The Corporation will use its
commercially reasonable efforts, and will reasonably cooperate with the
Warrantholder, to take such other actions as are necessary to obtain (i) any
Regulatory Approvals applicable to Warrantholder’s exercise of its rights
hereunder, including with respect to the issuance of the Shares and (ii) any
regulatory approvals applicable to the Corporation solely as a result of the
issuance of the Shares.  Before taking
any action which would cause an adjustment pursuant to Section 13 to reduce
the Exercise Price below the then par value of the Class A Common Stock,
the Corporation shall take any and all corporate action which may, in the
opinion of its counsel, be necessary in order that the Corporation may validly
and legally issue fully paid and non-assessable shares of Class A Common
Stock at the Exercise Price as so adjusted.


 


5.                                       No
Fractional Shares or Scrip.  No
fractional Shares or scrip representing fractional Shares shall be issued upon
any exercise of this Warrant.  In lieu of
any fractional Share to which the Warrantholder would otherwise be entitled,
the Warrantholder shall be entitled to receive a cash payment equal to the
Market Price of the Class A Common Stock on the last trading day preceding
the date of exercise less the Exercise Price for such fractional share.


 


6.                                       No
Rights as Stockholders; Transfer Books. 
This Warrant does not entitle the Warrantholder to any voting rights or
other rights as a stockholder of the Corporation prior to the


 


6

















 


date of exercise hereof.  The Corporation will at no time close its
transfer books against transfer of this Warrant in any manner which interferes
with the timely exercise of this Warrant.


 


7.                                       Charges,
Taxes and Expenses.  Issuance of certificates
for Shares to the Warrantholder upon the exercise of this Warrant shall be made
without charge to the Warrantholder for any issue or transfer tax or other
incidental expense in respect of the issuance of such certificates, all of
which taxes and expenses shall be paid by the Corporation.


 


8.                                       Transfer/Assignment.


 


(A)                              Subject
to compliance with clauses (B) and (C) of this Section 8, this
Warrant and all rights hereunder are transferable, in whole or in part, upon
the books of the Corporation by the registered holder hereof in person or by
duly authorized attorney, and a new warrant shall be made and delivered by the
Corporation, of the same tenor and date as this Warrant but registered in the
name of one or more transferees, upon surrender of this Warrant, duly endorsed,
to the office or agency of the Corporation described in Section 3.  All expenses (other than stock transfer
taxes) and other charges payable in connection with the preparation, execution
and delivery of the new warrants pursuant to this Section 8 shall be paid
by the Corporation.


 


(B)                                Notwithstanding
the foregoing, this Warrant and any rights hereunder, and any Shares issued
upon exercise of this Warrant, shall be subject to the applicable restrictions
as set forth in Section 13.4 of the Securities Purchase Agreement.


 


(C)                                If
and for so long as required by the Securities Purchase Agreement, this Warrant
Certificate shall contain a legend as set forth in Section 13.5 of the
Securities Purchase Agreement.


 


9.                                       Exchange
and Registry of Warrant.  This
Warrant is exchangeable, upon the surrender hereof by the Warrantholder to the
Corporation, for a new warrant or warrants of like tenor and representing the
right to purchase the same aggregate number of Shares.  The Corporation shall maintain a registry
showing the name and address of the Warrantholder as the registered holder of
this Warrant.  This Warrant may be
surrendered for exchange or exercise, in accordance with its terms, at the
office of the Corporation, and the Corporation shall be entitled to rely in all
respects, prior to written notice to the contrary, upon such registry.


 


10.                                 Loss,
Theft, Destruction or Mutilation of Warrant.  Upon receipt by the Corporation of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and in the case of any such loss, theft or destruction, upon
receipt of a bond, indemnity or security reasonably satisfactory to the
Corporation, or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Corporation shall make and deliver, in lieu
of such lost, stolen, destroyed or mutilated Warrant, a new Warrant of like
tenor and representing the right to purchase the same aggregate number of
Shares as provided for in such lost, stolen, destroyed or mutilated Warrant.


 


11.                                 Saturdays,
Sundays, Holidays, etc.  If the last
or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day,


 


7

















 


then such action may be taken or such right
may be exercised on the next succeeding day that is a Business Day.


 


12.                                 Rule 144
Information.  The Corporation
covenants that it will use its reasonable best efforts to timely file all
reports and other documents required to be filed by it under the Exchange Act
and the rules and regulations promulgated by the SEC thereunder (or, if
the Corporation is not required to file such reports, it will, upon the request
of any Warrantholder, make publicly available such information as necessary to
permit sales pursuant to Rule 144 or Regulation S under the Securities
Act), and it will use reasonable best efforts to take such further action as
any Warrantholder may reasonably request, in each case to the extent required
from time to time to enable such holder to, if permitted by the terms of this
Warrant and the Securities Purchase Agreement, sell this Warrant without
registration under the Securities Act within the limitation of the exemptions
provided by (A) Rule 144 or Regulation S under the Securities Act, as
such rules may be amended from time to time, or (B) any successor rule or
regulation hereafter adopted by the SEC. 
Upon the written request of any Warrantholder, the Corporation will
deliver to such Warrantholder a written statement that it has complied with
such requirements.


 


13.                                 Adjustments
and Other Rights.  The Exercise Price
and the number of Shares issuable upon exercise of this Warrant shall be
subject to adjustment from time to time as follows; provided, that if more than
one subsection of this Section 13 is applicable to a single event, the
subsection shall be applied that produces the largest adjustment and no single
event shall cause an adjustment under more than one subsection of this Section 13
so as to result in duplication:


 


(A)                              Stock
Splits, Subdivisions, Reclassifications or Combinations.  If the Corporation shall (i) declare and
pay a dividend or make a distribution on its Class A Common Stock in
shares of Class A Common Stock, (ii) subdivide or reclassify the
outstanding shares of Class A Common Stock into a greater number of
shares, or (iii) combine or reclassify the outstanding shares of Class A
Common Stock into a smaller number of shares, the number of Shares issuable
upon exercise of this Warrant at the time of the record date for such dividend
or distribution or the effective date of such subdivision, combination or
reclassification shall be proportionately adjusted so that the Warrantholder
after such date shall be entitled to purchase the number of shares of Class A
Common Stock which such holder would have owned or been entitled to receive in
respect of the shares of Class A Common Stock subject to this Warrant
after such date had this Warrant been exercised immediately prior to such
date.  In such event, the Exercise Price
in effect at the time of the record date for such dividend or distribution or
the effective date of such subdivision, combination or reclassification shall
be adjusted to the number obtained by dividing (x) the product of (1) the
number of Shares issuable upon the exercise of this Warrant before such
adjustment and (2) the Exercise Price in effect immediately prior to the
record or effective date, as the case may be, for the dividend, distribution,
subdivision, combination or reclassification giving rise to this adjustment by (y) the
new number of Shares issuable upon exercise of the Warrant determined pursuant
to the immediately preceding sentence.


 


(B)                                Certain
Issuances of Common Stock or Convertible Securities.  If the Corporation shall issue shares of Class A
Common Stock (or rights or warrants or other


 


8

















 


securities exercisable or convertible into or
exchangeable (collectively, a “conversion”) for shares of Common Stock
(collectively, “convertible securities”)) (other than in Permitted
Transactions or a transaction to which subsection (A) of this Section 13
is applicable) without consideration or at a consideration per share (or having
a conversion price per share) that is less than 95% of the Market Price on the
last trading day preceding the date of the agreement on pricing such shares (or
such convertible securities) then, in such event:


 


(A)                              the
number of Shares issuable upon the exercise of this Warrant immediately prior
to the date of the agreement on pricing of such shares (or of such convertible
securities) (the “Initial Number”) shall be increased to the number
obtained by multiplying the Initial Number by a fraction (A) the numerator
of which shall be the sum of (x) the number of shares of Common Stock of
the Corporation outstanding on such date and (y) the number of additional
shares of Common Stock issued (or into which convertible securities may be
exercised or converted) and (B) the denominator of which shall be the sum
of (I) the number of shares of Common Stock outstanding on such date and (II) the
number of shares of Common Stock which the aggregate consideration receivable
by the Corporation for the total number of shares of Common Stock so issued (or
into which convertible securities may be exercised or convert) would purchase
at the Market Price on the last trading day preceding the date of the agreement
on pricing such shares (or such convertible securities); and


 


(B)                                the
Exercise Price payable upon exercise of the Warrant shall be adjusted by
multiplying such Exercise Price in effect immediately prior to the date of the
agreement on pricing of such shares (or of such convertible securities) by a
fraction, the numerator of which shall be the number of shares of Class A
Common Stock issuable upon exercise of this Warrant prior to such date and the
denominator of which shall be the number of shares of Class A Common Stock
issuable upon exercise of this Warrant immediately after the adjustment
described in clause (A) above.


 


For the avoidance of doubt, no increase to the Exercise Price or
decrease in the number of Shares issuable upon exercise of this Warrant shall
be made pursuant to this Section 13(B).


 


For purposes of the foregoing, the aggregate consideration receivable
by the Corporation in connection with the issuance of such shares of Common
Stock or convertible securities shall be deemed to be equal to the sum of the
net offering price (after deduction of any related expenses payable to third parties)
of all such securities plus the minimum aggregate amount, if any, payable upon
exercise or conversion of any such convertible securities into shares of Common
Stock; consideration other than cash, including securities acquired in exchange
therefor (other than securities by their terms so exchangeable) shall be deemed
to be the Fair Market Value thereof.


 


Notwithstanding anything to the contrary contained herein, upon the
grant of any Dilutive Equity Grants (as defined below), the number of Shares
issuable upon the exercise of this Warrant and the Exercise Price shall be
adjusted pursuant to this Section 13(B) as though the


 


9
















 


Corporation had, on the date of grant of such Dilutive Equity Grants,
issued shares of Class A Common Stock equal in number to the number of
Share Equivalents (as defined below) represented by such Dilutive Equity Grants
for no consideration.  No further adjustments
to the number of Shares issuable upon exercise of this Warrant on the Exercise
Price shall be made in respect of the grant, vesting or exercise of such
Dilutive Equity Grants.


 


“Permitted Transactions” shall include issuances (i) in
connection with matching grants of Class A Common Stock pursuant to The
New York Times Companies Supplemental Retirement and Investment Plan or any
successor plan intended to be qualified under Section 401(a) of the
Internal Revenue Code of 1986 (the “Code”), (ii) in connection with
the Corporation’s Employee Stock Purchase Plan (or any successor plan that
qualifies as an “employee stock purchase plan” under Section 423 of the
Code), (iii) in connection with stock options and restricted stock units
granted prior to the date of this Warrant and exercised or settled in
accordance with their terms as in effect on the date hereof and disclosed to
the Purchaser prior to the date hereof, (iv) in connection with stock
options, restricted stock units or shares of Class A Common Stock issued
after the date of this Warrant, pursuant to employee, director or independent
contractor/consulting plans, agreements or arrangements and other compensation
related arrangements approved by the Board of Directors or the compensation
committee thereof, or by the Corporation’s management acting under authority
delegated by the Board of Directors or the compensation committee, up to the
Permitted Grant Amount, as defined below (with stock options, restricted stock
units, shares of Class A Common Stock and other employee equity or
equity-based awards that are settled in shares of Class A Common Stock
(other than those described in (i) and (ii) above) so granted in
excess of the Permitted Grant Amount being referred to as “Dilutive Equity
Grants”)), (v) of warrants to acquire an aggregate of not more than
9,500 shares of Class A Common Stock, on terms substantially identical to
the terms hereof, to holders of Class B Common Stock who exercise their
pre-emptive rights under the Corporation’s Certificate of Incorporation with
respect to the issuance hereof (the “Preemptive Warrants”), and any
adjustments to the exercise price or shares issuable upon the exercise of such
Preemptive Warrants pursuant to terms thereof, (vi) in connection with
registered open market sales of Class A Common Stock at prevailing market
prices, (vii) upon the exercise or conversion of a Preemptive Warrant or
of convertible securities for which an adjustment pursuant to this clause (B) had
previously been made or had not been required to be made, and (viii) upon
conversion of shares of the Corporation’s Class B Common Stock into shares
of Class A Common Stock without the payment of any consideration
therefor.  “Permitted Grant Amount”
shall mean 2,000,000 Share Equivalents per year commencing on the date of this
Warrant and accruing annually with unused amounts carried forward.  For the purpose hereof, each stock option
constitutes one-third of a “Share Equivalent” and each restricted stock
unit, grant of Class A Common Stock and other employee equity or
equity-based compensation settled in shares of Class A Common Stock (other
than those described pursuant to (i) and (ii) above) constitutes one “Share
Equivalent.”


 


Any adjustment made pursuant to this Section 13(B) shall
become effective immediately upon the date of such issuance.


 


(C)           Other Distributions.  In case the Corporation shall fix a record
date for the making of a distribution to all holders of shares of its Class A
Common Stock of securities, evidences of indebtedness, assets, cash, rights or
warrants (excluding Ordinary Cash Dividends,


 


10

















 


dividends of its Class A Common Stock
and other dividends or distributions referred to in Section 13(A)), in
each such case, the Exercise Price in effect prior to such record date shall be
reduced immediately thereafter to the price determined by multiplying the
Exercise Price in effect immediately prior to the reduction by the quotient of (x) the
Market Price of the Class A Common Stock on the last trading day preceding
the first date on which the Class A Common Stock trades regular way on the
New York Stock Exchange without the right to receive such distribution, minus
the amount of cash or the Fair Market Value of the securities, evidences of
indebtedness, assets, rights or warrants to be so distributed in respect of one
share of Common Stock (the “Per Share Fair Market Value”) divided by (y) such
Market Price on such date specified in clause (x); such adjustment shall be
made successively whenever such a record date is fixed.  In such event, the number of Shares issuable
upon the exercise of this Warrant shall be increased to the number obtained by
dividing (x) the product of (1) the number of Shares issuable upon
the exercise of this Warrant before such adjustment, and (2) the Exercise
Price in effect immediately prior to the distribution giving rise to this
adjustment by (y) the new Exercise Price determined in accordance with the
immediately preceding sentence.  In the
case of an adjustment for a cash dividend that is, or is coincident with, a
regular quarterly dividend, both the Per Share Fair Market Value and the Market
Price specified in clause (x) would be reduced by the per share amount of
the portion of the cash dividend that would constitute an Ordinary Cash
Dividend.  In the event that such
distribution is not so made, the Exercise Price and the number of Shares
issuable upon exercise of this Warrant then in effect shall be readjusted, effective
as of the date when the Board of Directors determines not to distribute such
shares, evidences of indebtedness, assets, rights, cash or warrants, as the
case may be, to the Exercise Price that would then be in effect and the number
of Shares that would then be issuable upon exercise of this Warrant if such
record date had not been fixed.


 


(D)          Certain Repurchases of Class A
Common Stock.  In case the
Corporation effects a Pro Rata Repurchase of Class A Common Stock, then
the Exercise Price shall be adjusted to the price determined by multiplying the
Exercise Price in effect immediately prior to the effective date of such Pro
Rata Repurchase by a fraction of which the numerator shall be (i) the
product of (x) the number of shares of Class A Common Stock
outstanding immediately before such Pro Rata Repurchase and (y) the Market
Price of a share of Class A Common Stock on the trading day immediately
preceding the first public announcement by the Corporation or any of its
Affiliates of the intent to effect such Pro Rata Repurchase, minus (ii) the
aggregate purchase price of the Pro Rata Repurchase, and of which the
denominator shall be the product of (i) the number of shares of Class A
Common Stock outstanding immediately prior to such Pro Rata Repurchase minus
the number of shares of Class A Common Stock so repurchased and (ii) the
Market Price per share of Class A Common Stock on the trading day
immediately preceding the first public announcement by the Corporation or any
of its Affiliates of the intent to effect such Pro Rata Repurchase.  In such event, the number of shares of Class A
Common Stock issuable upon the exercise of this Warrant shall be adjusted to
the number obtained by dividing (x) the product of (1) the number of
Shares issuable upon the exercise of this Warrant before such adjustment, and (2) the
Exercise Price in effect immediately prior to the Pro Rata Repurchase giving
rise to this adjustment by (y) the new Exercise Price determined in
accordance with the immediately preceding sentence.


 


(E)           Business Combinations.  In case of any Business Combination or
reclassification of Class A Common Stock (other than a reclassification of
Class A Common 


 


11

















 


Stock referred to in Section 13(A)), the
Warrantholder’s right to receive Shares upon exercise of this Warrant shall be
converted into the right to exercise this Warrant to acquire the number of
shares of stock or other securities or property (including cash) which the Class A
Common Stock issuable (at the time of such Business Combination or
reclassification) upon exercise of this Warrant immediately prior to such
Business Combination or reclassification would have been entitled to receive
upon consummation of such Business Combination or reclassification; and in any
such case, if necessary, the provisions set forth herein with respect to the
rights and interests thereafter of the Warrantholder shall be appropriately
adjusted so as to be applicable, as nearly as may reasonably be, to the
Warrantholder’s right to exercise this Warrant in exchange for any shares of
stock or other securities or property pursuant to this paragraph.  In determining the kind and amount of stock,
securities or the property receivable upon exercise of this Warrant following the
consummation of such Business Combination, if the holders of Class A
Common Stock have the right to elect the kind or amount of consideration
receivable upon consummation of such Business Combination, then the
Warrantholder shall have the right to make a similar election (including,
without limitation, being subject to similar proration constraints) upon
exercise of this Warrant with respect to the number of shares of stock or other
securities or property which the Warrantholder will receive upon exercise of
this Warrant.


 


(F)           Rounding of Calculations;  Minimum Adjustments.  All calculations under this Section 13
shall be made to the nearest one-tenth (1/10th) of a cent or to the nearest
one-hundredth (1/100th) of a share, as the case may be.  Any provision of this Section 13 to the
contrary notwithstanding, no adjustment in the Exercise Price or the number of
Shares into which this Warrant is exercisable shall be made if the amount of
such adjustment would be less than $0.01 or one-tenth (1/10th) of a share of Class A
Common Stock, but any such amount shall be carried forward and an adjustment
with respect thereto shall be made at the time of and together with any
subsequent adjustment which, together with such amount and any other amount or
amounts so carried forward, shall aggregate $0.01 or 1/10th of a share of Class A
Common Stock, or more.


 


(G)           Timing of Issuance of Additional Class A
Common Stock Upon Certain Adjustments. 
In any case in which the provisions of this Section 13 shall
require that an adjustment shall become effective immediately after a record
date for an event, the Corporation may defer until the occurrence of such event
(i) issuing to the Warrantholder of this Warrant exercised after such
record date and before the occurrence of such event the additional shares of Class A
Common Stock issuable upon such exercise by reason of the adjustment required
by such event over and above the shares of Class A Common Stock issuable
upon such exercise before giving effect to such adjustment and (ii) paying
to such Warrantholder any amount of cash in lieu of a fractional share of Class A
Common Stock; provided, however, that the Corporation upon
request shall deliver to such Warrantholder a due bill or other appropriate
instrument evidencing such Warrantholder’s right to receive such additional
shares, and such cash, upon the occurrence of the event requiring such
adjustment.


 


(H)          Other Events.  For so long as the Warrantholder holds this
Warrant or any portion thereof, if any event occurs as to which the provisions
of this Section 13 are not strictly applicable or, if strictly applicable,
would not, in the good faith judgment of the Board of Directors of the
Corporation, fairly and adequately protect the purchase rights of the Warrants
in accordance with the essential intent and principles of such provisions, then
the Board of 


 


12

















 


Directors shall make such adjustments in the
application of such provisions, in accordance with such essential intent and
principles, as shall be reasonably necessary, in the good faith opinion of the
Board of Directors, to protect such purchase rights as aforesaid.  Without limiting the foregoing, in connection
with and as a condition to any transaction, including any distribution, in
respect of, the Class B Common Stock or any other class of Common Stock in
existence from time to time that would give rise to an adjustment pursuant to
this Section 13 if such transaction were in respect of the Class A
Common Stock (other than a transaction in which the Class A Common Stock
participates on a pro rata basis), the Board of Directors shall make such
adjustments to the Exercise Price and the number of shares into which this
Warrant is exercisable as are fair and equitable in its good faith opinion to
protect the purchase rights of the Warrants as if such transaction was solely
in respect of the Class A Common Stock. 
The Exercise Price and the number of Shares into which this Warrant is
exercisable shall not be adjusted in the event of a change in the par value of
the Common Stock or a change in the jurisdiction of incorporation of the
Corporation.


 


(I)            Statement Regarding Adjustments.  Whenever the Exercise Price or the number of
Shares into which this Warrant is exercisable shall be adjusted as provided in Section 13,
the Corporation shall forthwith file at the principal office of the Corporation
a statement showing in reasonable detail the facts requiring such adjustment
and the Exercise Price that shall be in effect and the number of Shares into
which this Warrant shall be exercisable after such adjustment, and the
Corporation shall also cause a copy of such statement to be sent by mail, first
class postage prepaid, to each Warrantholder at the address appearing in the
Corporation’s records.


 


(J)            Notice of Adjustment Event.  In the event that the Corporation shall
propose to take any action of the type described in this Section 13 (but
only if the action of the type described in this Section 13 would result
in an adjustment in the Exercise Price or the number of Shares into which this
Warrant is exercisable or a change in the type of securities or property to be
delivered upon exercise of this Warrant), the Corporation shall give notice to
the Warrantholder, in the manner set forth in Section 13(G), which notice
shall specify the record date, if any, with respect to any such action and the
approximate date on which such action is to take place.  Such notice shall also set forth the facts
with respect thereto as shall be reasonably necessary to indicate the effect on
the Exercise Price and the number, kind or class of shares or other securities
or property which shall be deliverable upon exercise of this Warrant.  In the case of any action which would require
the fixing of a record date, such notice shall be given at least 10 days prior
to the date so fixed, and in case of all other action, such notice shall be
given at least 15 days prior to the taking of such proposed action, except if
it is impracticable to provide such 15 days’ prior notice, then the Corporation
shall provide such notice as soon as it is reasonably able prior to the taking
of such proposed action.  Failure to give
such notice, or any defect therein, shall not affect the legality or validity
of any such action.


 


(K)          Proceedings Prior to Any Action
Requiring Adjustment.  As a condition
precedent to the taking of any action which would require an adjustment
pursuant to this Section 13, the Corporation shall take any action which
may be necessary, including obtaining regulatory, New York Stock Exchange or
stockholder approvals or exemptions, in order that the Corporation may
thereafter validly and legally issue as fully paid and nonassessable all shares
of 


 


13

















 


Class A Common Stock that the
Warrantholder is entitled to receive upon exercise of this Warrant pursuant to
this Section 13.


 


(L)           Adjustment Rules.  Any adjustments pursuant to this Section 13
shall be made successively whenever an event referred to herein shall
occur.  If an adjustment in Exercise
Price made hereunder would reduce the Exercise Price to an amount below the par
value of the Class A Common Stock, then such adjustment in the Exercise
Price made hereunder shall reduce the Exercise Price to the par value of the Class A
Common Stock and then, upon the Corporation’s satisfaction of its obligations
under Section 4, to such lower par value as may then be established.


 


(M)         No Impairment. The Corporation
will not, by amendment of its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Corporation, but will at all times in good faith assist in the
carrying out of all the provisions of this Warrant and in taking of all such
action as may be necessary or appropriate in order to protect the rights of the
Warrantholder.


 


14.           Governing Law.   This Warrant will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within such State. 
Any dispute arising out of this Warrant or the transactions contemplated
hereby shall be subject to the exclusive jurisdiction of the State or Federal
courts in the Borough of Manhattan, The City of New York.


 


15.           Binding Effect.  This Warrant shall be binding upon any
successors or assigns of the Corporation.


 


16.           Amendments.  This Warrant may be amended and the observance
of any term of this Warrant may be waived only with the written consent of the
Corporation and the Warrantholder.


 


17.           Prohibited Actions. The
Corporation agrees that it will not take any action which would entitle the
Warrantholder to an adjustment of the Exercise Price if the total number of
shares of Class A Common Stock issuable after such action upon exercise of
this Warrant, together with all shares of Class A Common Stock then
outstanding and all shares of Class A Common Stock then issuable upon the
exercise of all outstanding options, warrants, conversion and other rights,
would exceed the total number of shares of Class A Common Stock then
authorized by its certificate of incorporation.


 


18.           Notices.  Any notice, request, instruction or other
document to be given hereunder by any party to the other will be in writing and
will be deemed to have been duly given (a) on the date of delivery if
delivered personally, or by facsimile, upon confirmation of receipt, or (b) on
the second Business Day following the date of dispatch if delivered by a
recognized next day courier service.  All
notices hereunder shall be delivered as set forth below for the Corporation, or
at the address for the Warrantholder set forth in the registry maintained by
the Corporation


 


14

















 


pursuant to Section 9, or pursuant to
such other instructions as may be designated in writing by the party to receive
such notice.


 


	
                                  If to the Corporation, to:

  
	
   

  
	
   

  	
  The New York
  Times Company

  
	
   

  	
  620 Eighth Avenue

  
	
   

  	
  New York, New York 10018

  
	
   

  	
  Telecopy No.: (212) 556-4634

  
	
   

  	
  Confirmation No.: (212) 556-1234

  
	
   

  	
  Attention: General Counsel

  



 


19.           Entire Agreement.  This Warrant and the forms attached hereto,
and the Securities Purchase Agreement (and the other documents referenced in Section 16
of the Securities Purchase Agreement), contain the entire agreement between the
parties with respect to the subject matter hereof and supersede all prior and
contemporaneous arrangements or undertakings with respect thereto.


 


[Remainder of page intentionally left
blank]


 


15

















 


IN WITNESS WHEREOF, the Corporation has caused this Warrant to be duly
executed by a duly authorized officer.


 


Dated:  January 21, 2009.


 


	
   

  	
  THE NEW YORK TIMES COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attest:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


16

















 


[Form of Notice of Exercise]


 


	
   

  	
  Date: ______________

  



 


TO:  The New York Times Company


 


RE:  Election to Purchase Class A
Common Stock


 


The undersigned, pursuant to the provisions set forth in the attached
Warrant, hereby agrees to subscribe for and purchase the number of shares of
the Class A Common Stock set forth below covered by such Warrant.  The undersigned, in accordance with Section 3
of the Warrant, hereby agrees to pay the aggregate Exercise Price for such
shares of Class A Common Stock.  A
new warrant evidencing the remaining shares of Class A Common Stock
covered by such Warrant, but not yet subscribed for and purchased, if any,
should be issued in the name of the Holder set forth below.


 


Number of Shares of Class A Common Stock: _________________________


 


Method of Payment of Exercise Price (note if cashless exercise pursuant
to Section 3(B) of the  Warrant
of cash exercise


pursuant to Section 3(A) of the Warrant)
_________________________________


 


Aggregate Exercise Price: _______________________________


 


 


	
   

  	
  Holder:

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


17

















 


Schedule of Warrantholders


 


	
  Name of Warrantholder

  	
   

  	
  Number of Shares of The New York

  Times Company Class A Common

  Stock Warrant is Exercisable For

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


18
















 


Exhibit 3


 


FORM OF REGISTRATION RIGHTS AGREEMENT


 


THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered
into as of January 21, 2009 by and between The New York Times Company, a
New York corporation (the “Company”) and Inmobiliaria Carso,
S.A. de C.V. and Banco Inbursa S.A., Institución de Banca Múltiple Grupo
Financiero Inbursa (each
an “Investor” and collectively the “Investors”).


 


A.         The
Company entered into an agreement with the Investors, dated January 19,
2009, (the “Securities Purchase Agreement”) in which the Company agreed
to issue to the Investors $250,000,000 aggregate principal amount of its
14.053% Senior Notes due 2015 and detachable warrants (the “Warrants”)
to acquire 15,900,000 shares of the Company’s Class A common stock, par
value $0.10 per share (the “Class A Common Stock”).


 


B.         As
a condition to the Investors’ entering into the Securities Purchase Agreement,
the parties are entering into this Agreement to provide the Investors with
certain registration rights for the Registrable Securities, as further
described herein.


 


NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants hereinafter set forth, the parties hereto agree as follows:


 


1.                 REGISTRATION
RIGHTS.


 


1.1           Definitions. For purposes of this
Agreement:


 


(a)     Holder.
The term “Holder” means the Investors and any person owning of record
Registrable Securities or any assignee of record of such Registrable Securities
to whom rights set forth herein have been duly assigned in accordance with this
Agreement. To the extent there is more than one Holder, the term shall mean all
Holders collectively, acting at the direction of Holders of a majority of the
outstanding Registrable Securities.


 


(b)     Law.
The term “Law” means any federal, state, local statute, law (including
common law), ordinance, regulation, rule, code, injunction, judgment, decree,
or order of any governmental authority.


 


(c)     Registrable
Securities. The term “Registrable Securities” means the Warrants and all
shares of Class A Common Stock issuable upon exercise of the Warrants
until such time as such securities have been sold pursuant to an effective
Registration or pursuant to Rule 144 under the Securities Act.


 


(d)     Registration.
The terms “register”, “registration”  and “registered” refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act of 1933, as amended (the “Securities Act”),
and the declaration or ordering of effectiveness of such registration
statement.


 


(e)      SEC. The term “SEC”
means the U.S. Securities and Exchange Commission.


 

















 


1.2           Demand Registration.


 


(a)     Request
by the Holder. If the Company shall receive at any time following the
earlier of (x) the first anniversary of the date hereof or (y) the
expiration of the transfer restrictions set forth in Section 13.4 of the
Securities Purchase Agreement a written request from the Holder that the
Company file a registration statement under the Securities Act covering the
registration of (i) all Registrable Securities held by the Holder or (ii) any
part of the Registrable Securities held by the Holder, provided that the
estimated market value of the Registrable Securities to be so registered
pursuant to this clause (ii) is at least $25,000,000 in the aggregate
pursuant to this Section 1.2 (such requested registration, a “Demand
Registration”), then the Company shall, pursuant to Section 1.5,
effect the registration under the Securities Act of all Registrable Securities
that the Holder requests be registered.


 


(b)     Underwriting.  If the Holder intends to distribute the
Registrable Securities covered by its request by means of a registered public
offering involving an underwriting, then the Holder shall so advise the Company
as a part of its demand made pursuant to Section 1.2(a).  In such event, the Holder shall select an
underwriter that is reasonably acceptable to the Company, and the Company and
the Holder shall enter into an underwriting agreement in customary form with
such underwriter.


 


(c)      Maximum Number of Demand Registrations.
The Holder has the right to two (2) Demand Registrations pursuant to this Section 1.2,
provided, that the Company will not be obligated to effect more than one
Demand Registration in any six (6) month period.


 


(d)     Demand Withdrawal.  The
Holder may withdraw its Registrable Securities from a Demand Registration at
any time.  The Company shall cease all
efforts to secure registration and such registration nonetheless shall be
deemed a Demand Registration, unless
the withdrawal is based on the reasonable determination of the Holder that
there has been, since the date of such request, a material adverse change in
the business or prospects of the Company or in general market conditions.


 


1.3           Piggyback Registration.


 


(a)     Right
to Include Registrable Securities. If the Company shall determine at any
time following the earlier of (x) the first anniversary of the date hereof
or (y) the expiration of the transfer restrictions set forth in Section 13.4
of the Securities Purchase Agreement to register any of its shares of Class A
Common Stock and file a registration statement thereto under the Securities
Act, whether or not for sale for its own account (other than a registration
statement on Form S-4, Form S-8 or any successor or similar form(s),
or a registration on any registration form that does not permit the sale of the
Registrable Securities), the Company will:


 


(i)    promptly (but in no event less
than ten (10) business days prior to the anticipated filing date) give to
the Holder a written notice thereof (which shall include a list of the
jurisdictions in which the Company intends to attempt to qualify such
securities under the applicable blue sky or other state securities laws); and


 


2

















 


(ii)   include in such registration
(and any related qualification under blue sky laws or other compliance), and in
any underwriting involved therein, all the Registrable Securities specified in
a written request or requests (provided that the Holder has indicated within
twenty (20) business days after receipt of the written notice from the Company
described in clause (i) above that the Holder desires to sell Registrable
Securities in the manner of distribution proposed by the Company), except as
set forth in Section 1.3(b) below.


 


(b)     Underwriting.  If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holder as a part of the written notice given
pursuant to Section 1.3(a)(i). 
In such event, and in the event that the Holder requests to register
Registrable Securities pursuant to Section 1.3(a)(ii), the Holder
shall enter into an underwriting agreement in customary form with such
underwriter; provided, that the Holder shall only be required to
indemnify the underwriters to the extent set forth in Section 1.7(b) hereof;
provided, further, that if the Holder disapproves of the terms of
the underwriting, the Holder may elect to withdraw therefrom by written notice
to the Company and the managing underwriter.


 


(c)      Reduction in Offering.  If the managing underwriter or underwriters
for a registration pursuant to this Section 1.3 advises the Company
and the Holder in writing that the dollar amount or number of Registrable
Securities which the Holder desires to sell taken together with all other
shares of Class A Common Stock or other securities which the Company
desires to sell exceeds the maximum dollar amount or maximum number of
securities that can be sold in such offering without adversely affecting the
proposed offering price, the timing, the distribution method or the probability
of success of such offering (such maximum dollar amount or maximum number of
securities, as applicable, the “Maximum Number of Securities”), then the
Company shall include in such registration: (i) first, the shares of Class A
Common Stock or other securities that the Company desires to sell that can be
sold without exceeding the Maximum Number of Securities; and (ii) to the
extent that the Maximum Number of Securities has not been reached under the
foregoing clause (i),  the Registrable
Securities as to which the registration has been requested.


 


(d)     Postponement or
Termination.  The Company may in its
sole discretion postpone or terminate the registration subject to this Section 1.3.


 


 


1.4           Fees and Expenses. All fees and
expenses of the parties incurred in connection with a registration pursuant
hereto, including without limitation all filing, registration and qualification
fees, printers’ and accounting fees and the actual fees and disbursements of
counsel for the Company shall be borne by the Company; provided, however,
that the Company shall have no obligation to pay the actual fees and
disbursements of counsel to the Holder; provided, further, however,
that the Company shall have no obligation to pay any underwriting discounts or
selling commissions attributable to the Registrable Securities being sold by
the Holder, which underwriting discounts or selling commissions shall be borne
solely by the Holder.  The Company shall
promptly (but no later than twenty (20) days after


 


3

















 


presentation of an invoice to the Company) reimburse the Holder for any
such fees and expenses paid by the Holder.


 


1.5           Obligations
of the Company.  Whenever required to
effect the registration of any Registrable Securities under this Agreement, the
Company shall, subject to Section 1.3(d), as promptly as possible
(or by such earlier deadline as may be specified below):


 


(a)     prepare
and file with the SEC a registration statement with respect to the Registrable
Securities (which shall be, to the extent available, a “shelf” registration statement (or any comparable or successor form)
providing for the registration and the sale on a continuous or delayed basis of
the Registrable Securities pursuant to Rule 415).and use its
reasonable best efforts to cause the registration statement to become effective
as soon as reasonably practicable and, in any case, within forty-five (45)
calendar days after receipt of a request pursuant to Section 1.2(a) or
notice pursuant to Section 1.3(a), if not reviewed by the SEC, or
within ninety (90) calendar days after receipt of a request pursuant to Section 1.2(a) or
notice pursuant to Section 1.3(a) in the event the registration
statement is reviewed by the SEC; provided, however, that the
Company shall have the right to defer any request for registration pursuant to Section 1.2(a) for
up to sixty (60) days, if the Company shall furnish to the Holder a certificate
signed by the Chief Executive Officer of the Company stating that, in the good
faith judgment of the Board of Directors of the Company after consultation and
advice of counsel to the Company, it would be materially detrimental to the
Company and its stockholders for such a registration statement to be effected
at such time; provided, further, however, that the Company
shall not have the right to exercise the right set forth in the immediately
preceding proviso more than once in any 365 day period with respect to a request
pursuant to Section 1.2(a);


 


(b)     cause
such registration statement to remain effective for the period of time
necessary to permit the Holder to dispose of all of its Registrable Securities,
with the timing of such sales to be determined by the Holder in its sole
discretion; provided, however, such period shall not exceed a sum
of two (2) years plus any period during which any such disposition is
interfered with by any stop order or injunction of the SEC or any governmental
agency or court;


 


(c)     prior
to the filing described above in paragraph (a), furnish to the Holder, no less
than seven (7) business days prior to such filing, copies of the
registration statement and any amendments or supplements thereto and any
prospectus forming a part thereof, which documents shall be subject to the
review of counsel representing the Holder, and use all reasonable best efforts
to reflect in each such document when so filed with the SEC such comments as
counsel representing the Holder shall reasonably propose within three (3) business
days of the delivery of such copies to the Holder;


 


(d)     file
any “free writing prospectus” (as defined in Rule 405 under the Securities
Act) that is required to be filed with the SEC in accordance with the
Securities Act;


 


(e)     notify
the Holder, promptly after receiving notice thereof, of the time when the
registration statement becomes effective or when any amendment or supplement or
any prospectus forming a part of the registration statement has been filed;


 


4

















 


(f)      notify
the Holder promptly of any request by the SEC for the amending or supplementing
of the registration statement or prospectus or for additional information;


 


(g)     (i) advise
the Holder after the Company shall receive notice or otherwise obtain knowledge
of the issuance of any order by the SEC preventing or suspending the
effectiveness of the registration statement or any amendment thereto or of the
initiation or threatening of any proceeding for that purpose and (ii) promptly
use all reasonable best efforts to prevent the issuance, or to obtain its
withdrawal at the earliest possible moment, of any stop order with respect to
the applicable registration statement or other order suspending the use of any
preliminary or final prospectus;


 


(h)     (i) prepare
and file with the SEC such amendments and supplements to the registration
statement and the prospectus forming a part thereof as may be necessary to keep
the registration statement effective for the period of time necessary to permit
the Holder to dispose of all of its Registrable Securities, with the timing of
such sales to be determined by the Holder in its sole discretion and (ii) comply
with the provisions of the Securities Act with respect to the disposition of
all Registrable Securities covered by the registration statement during such
period in accordance with the intended methods of disposition by the Holder set
forth in the registration statement;


 


(i)      furnish
to the Holder such number of copies of the registration statement, each
amendment and supplement thereto, the prospectus included in the registration
statement (including such preliminary prospectus) and such other documents the
Holder may reasonably request in order to facilitate the disposition of the
Registrable Securities;


 


(j)      use
its reasonable best efforts to register or qualify the Registrable Securities
under such other securities or blue sky laws of such jurisdictions as
determined by the Holder and its counsel or by the underwriters after
consultation with the Company and the Holder and do any and all other acts and
things that may be reasonably necessary or advisable to enable the Holder to
consummate the disposition in such jurisdictions of the Registrable Securities;
provided, however, that the Company shall not be required to
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 1.5(j) or
subject itself to taxation in any such jurisdiction;


 


(k)     notify
the Holder at any time when a prospectus relating to the Registrable Securities
is required to be delivered under the Securities Act, promptly upon the Company’s
becoming aware of the happening of any event as a result of which the
applicable registration statement or prospectus, as then in effect, includes an
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in the light of the circumstances then existing or, if for any other reason it shall be necessary to amend or supplement
such registration statement or prospectus in order to comply with the
Securities Act and, in either case as promptly as possible, prepare and
furnish to the Holder a reasonable number of copies of an amended or supplemental
prospectus as may be necessary so that, as thereafter delivered to the buyers
of the Registrable Securities, such registration statement prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the 


 


5

















 


statements therein not misleading in the light of the circumstances
then existing or shall effect such compliance;


 


(l)      suspend
the Holder’s use of a registration statement and any prospectus for a maximum
of thirty (30) days in any sixty (60) day period, and not to exceed an
aggregate of sixty (60) days in any twelve (12) month period, if (i) the
Company, in its reasonable judgment, believes it may possess material
non-public information the disclosure of which would be seriously detrimental
to the Company or (ii) if the registration statement and prospectus would,
in the Company’s judgment, contain a material misstatement or omission as a
result of an event that has occurred or is continuing.  However, if the disclosure relates to a
proposed or pending material business transaction, the disclosure of which the
Company determines in good faith would be reasonably likely to impede its
ability to consummate the transaction, or would otherwise be seriously
detrimental to the Company, the Company may extend the suspension period from
thirty (30) days to forty-five (45) days. 
The Company shall give notice to the Holder that the availability of the
registration statement is suspended and upon notice duly given pursuant to Section 2.4
hereof, the Holder agrees not to sell any Registrable Securities pursuant to
the registration statement until the Holder has received copies of a
supplemented or amended prospectus from the Company, or until it is advised by
the Company in writing that the prospectus may be used, and has received copies
of any additional or supplemental filings that are incorporated or deemed
incorporated by reference in such prospectus.


 


(m)    cause
senior representatives of the Company to participate in any “road show” or “road
shows” reasonably requested by any underwriter of an underwritten or “best
efforts” offering;


 


(n)     enter
into such customary agreements (including an underwriting agreement in customary
form and lock-up agreements in customary form, and including provisions with
respect to indemnification and contribution in customary form) and take all
such other action, if any, as the Holder or the underwriters shall reasonably
request in order to expedite or facilitate the disposition of the Registrable
Securities; and


 


(o)     (i) make
available for inspection by the Holder, any underwriter participating in any
distribution pursuant to the registration statement and any attorney,
accountant or other agent retained by the Holder or any such underwriter all
relevant financial and other records, pertinent corporate documents and
properties of the Company and (ii) cause the Company’s officers, directors
and employees to supply all relevant information reasonably requested by the
Holder or any such underwriter, attorney, accountant or agent in connection
with the registration statement; and


 


(p)     in
the case of an underwritten offering, furnish to the Holder, a signed
counterpart, addressed to the underwriter, of (i) an opinion of counsel
for the Company in customary form, dated the effective date of the registration
statement and (ii) a comfort letter from the Company’s independent public
accountants in customary form and covering matters of the type customarily
covered by an accountant’s comfort letter.


 


6
















 


1.6            Obligations of
the Holder.  Whenever the Company is required to effect the registration of any
Registrable Securities under this Agreement, the Holder shall, as promptly as
possible:


 


(a)          provide such information (including information
regarding the Holder itself and the intended method of distribution of the
Registrable Securities) as may be reasonably requested by the Company or the
managing underwriter, if any, in connection with the preparation of the
registration statement, including any amendments or supplements thereto, in
order to effect the registration of the Registrable Securities and in
connection with the Company’s obligation to comply with federal and applicable
state securities laws;


 


(b)          complete, execute and deliver any and all questionnaires,
powers of attorney, custody agreements, indemnities, underwriting agreements
and other documents reasonably required by or under the terms of any
underwriting agreement or as reasonably requested by the Company; provided,
that the indemnity by the Holder shall cover only the matters set forth in Section 1.7(b) hereof;
and


 


(c)          upon receipt of any notice from the Company of an
event of the kind described in Section 1.5(f) or Section 1.5(k),
Holder shall immediately discontinue disposition of the Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until Holder receives the supplemented or amended prospectus contemplated by Section 1.5(f) or
Section 1.5(k), and if so directed by the Company, Holder will deliver
to the Company all copies, other than permanent file copies in Holder’s
possession, of the most recent prospectus covering the Registrable Securities
at the time of receipt of such notice.  In the event that the Company shall give any
such notice in respect of a Demand Registration, the period during which the
applicable registration statement is required to be maintained effective shall
be extended by the number of days during the period from and including the date
of the giving of such notice to and including the date when the Holder either
receives the copies of the supplemented or amended prospectus contemplated by Section 1.5(f) or
Section 1.5(k) or is
advised in writing by the Company that the use of the prospectus may be
resumed.


 


1.7           Indemnification Relating to
Registration.


 


(a)           Indemnification by the
Company.  The Company shall indemnify
and hold harmless the Holder, the officers, directors, members, partners,
agents and employees of Holder, each person who controls the Holder (within the
meaning of Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) and
the officers, directors, members, shareholders, partners, agents and employees
of each such controlling person, to the fullest extent permitted by applicable
law, from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, actual attorneys’ fees and disbursements), and
expenses (collectively, “Losses”), as incurred, arising out of or relating
to any untrue or alleged untrue statement of a material fact contained in a
registration statement, any prospectus or any form of prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or any free
writing prospectus or any “issuer information” filed or required to be filed
pursuant to Rule 433(d) under the Securities Act or arising out of or
relating to any omission or alleged omission of a material fact required to be
stated therein or


 


7

















 


necessary
to make the statements therein (in the case of any prospectus or supplement
thereto and any free writing prospectus or “issuer information,” in light of
the circumstances under which they were made) not misleading, except insofar as
such Losses arise out of or are based upon any untrue or alleged untrue
statement of a material fact contained in a registration statement, any
prospectus or any form of prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or any free writing prospectus or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under
the Securities Act or arise out of or relate to any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein (in the case of any prospectus or supplement thereto and
any free writing prospectus or “issuer information,” in light of the
circumstances under which they were made) not misleading, if the statement or
omission was made in reliance upon and in conformity with information furnished
to the Company, in writing, by Holder expressly for use therein.


 


(b)           Indemnification by Holder.  Holder shall indemnify and hold harmless the
Company, its officers and directors and agents, and each other person, if any,
who controls the Company (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) against any and all
Losses incurred, arising out of or relating to any untrue or alleged untrue statement
of a material fact contained in a registration statement, any prospectus or any
form of prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or any free writing prospectus or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under
the Securities Act or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein (in the case of any prospectus or supplement thereto and
any free writing prospectus or “issuer information,” in light of the
circumstances under which they were made) not misleading, if the statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Company by Holder expressly for use therein.


 


(c)           Conduct of Indemnification
Proceedings. If any proceeding whatsoever shall be brought or
asserted against any person entitled to indemnification under Section 1.7(a) or
Section 1.7(b) (an “Indemnified Party”), such
Indemnified Party shall promptly notify such other person (the “Indemnifying
Party”) in writing, and the Indemnifying Party shall have the right to
assume the defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all fees and expenses
incurred in connection with defense thereof; provided, that the failure of any
Indemnified Party to give such notice shall not relieve the Indemnifying Party
of its obligations or liabilities pursuant to this Agreement.  An Indemnified Party shall have the right to
employ separate counsel in any such proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party or Parties unless: (i) the Indemnifying
Party has agreed in writing to pay such fees and expenses; (ii) the
Indemnifying Party shall have failed promptly to assume the defense of such
proceeding and to employ counsel reasonably satisfactory to such Indemnified
Party in any such proceeding; or (iii) the named parties to any such
proceeding (including any impleaded parties) include both such Indemnified
Party and the Indemnifying Party, and counsel to the Indemnified Party shall
reasonably believe that a conflict of interest is likely to exist if the same
counsel were to represent such Indemnified Party and the Indemnifying Party (in
which case, if such Indemnified Party notifies the Indemnifying Party in
writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume
the defense thereof and the actual fees and


 


8

















 


expenses
of separate counsel shall be at the expense of the Indemnifying Party).  The Indemnifying Party shall not be liable
for any settlement of any such proceeding effected without its written consent,
which consent shall not be unreasonably withheld, delayed or conditioned.  The Indemnifying Party shall not, without the
prior written consent of the Indemnified Party, effect any settlement of any
pending proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party
from all liability on claims that are the subject matter of such proceeding.
All actual fees and expenses of the Indemnified Party (including actual fees
and expenses to the extent incurred in connection with investigating or
preparing to defend such proceeding in a manner not inconsistent with this Section 1.7)
shall be paid to the Indemnified Party, as incurred, within ten (10) business
days of written notice thereof to the Indemnifying Party.


 


(d)           Contribution. If the
indemnification under Section 1.7(a) or Section 1.7(b) is
unavailable to an Indemnified Party or insufficient to hold an Indemnified
Party harmless for any Losses, then the Indemnifying Party shall contribute to
the amount paid or payable by such Indemnified Party, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of the Indemnifying Party and Indemnified Party shall be
determined by reference to, among other matters, whether any action in
question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission of a material fact, has been taken or made by,
or relates to information supplied by, the Indemnifying Party or Indemnified
Party, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such action, statement or omission.  The amount paid or payable by a party as a
result of any Losses shall be deemed to include any attorneys’ or other fees or
expenses incurred by such party in connection with any proceeding to the extent
such party would have been indemnified for such fees or expenses if the indemnification
provided for in this Section 1.7 were available to such party in
accordance with its terms.  The parties
hereto agree that it would not be just or equitable if contribution pursuant to
this Section 1.7(d) were determined by pro rata allocation or
by any other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph.  The indemnity and contribution agreements
contained in this Section 1.7 are in addition to any liability that
the Indemnifying Party may have to the Indemnified Party.


 


(e)           Survival. The
obligations of the parties hereto under this Section 1.7 shall
survive the completion of any offering of Registrable Securities in a
registration statement, and otherwise.


 


1.8           Rule 144 Reporting. With a view
to making available the benefits of certain rules and regulations of the
SEC which may at any time permit the sale of the Registrable Securities to the
public without registration, the Company agrees to:


 


(a)           make and keep public
information available, as those terms are understood and defined in Rule 144
under the Securities Act, at all times;


 


(b)           file with the SEC in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and


 


9

















 


(c)           so long as the Holder owns
any Registrable Securities, furnish to the Holder promptly upon request a
written statement by the Company as to its compliance with the reporting requirements
of said Rule 144 and of the Securities Act and the Exchange Act, a copy of
the most recent annual or quarterly report of the Company, and such other
reports and documents of the Company as the Holder may request in availing
itself of any rule or regulation of the SEC allowing the Holder to sell
any such securities without registration.


 


1.9             Lock-ups.  In consideration of the registration rights
provided by this Agreement, the Holder agrees, upon the Company’s request, to
enter into a customary lock-up agreement in connection with any underwritten
offering of securities by the Company; provided the Holder shall not be
obligated to execute any agreement for a period longer than comparable
agreements entered into by the Company’s officers and directors.


 


2.            GENERAL
PROVISIONS.


 


2.1           Assignment. The
registration rights of the Holder under this Agreement may only be assigned to (i) any Permitted Transferee, as
such term is defined in the Securities Purchase Agreement and (ii) any
other person acquiring Registrable Securities relating to shares of Class A
Common Stock with a value of at least $50,000,000.  The Company may not assign this Agreement
without the prior written consent of the Holder.  Subject to the foregoing, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties hereto.


 


2.2           Amendment and Waiver of
Rights. This Agreement may not be amended, modified or supplemented in any
manner, except by an instrument in writing signed on behalf of each party.


 


2.3           Waiver. No failure or
delay of any party in exercising any right or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such right or
power, or any course of conduct, preclude any other or further exercise thereof
or the exercise of any other right or power. 
The rights and remedies of the parties hereunder are cumulative and are
not exclusive of any rights or remedies which they would otherwise have
hereunder.  Any agreement on the part of
any party to any such waiver shall be valid only if set forth in a written
instrument executed and delivered by a duly authorized officer on behalf of
such party.


 


2.4           Notices.  All notices and other communications
hereunder shall be in writing and shall be deemed duly given (a) on the
date of delivery if delivered personally, or if by facsimile, upon written
confirmation of receipt by facsimile, (b) on the first business day
following the date of dispatch if delivered utilizing a next-day service by a
recognized next-day courier or (c) on the earlier of confirmed receipt or
the fifth (5th) business day following the date of mailing if delivered by registered
or certified mail, return receipt requested, postage prepaid.  All notices hereunder shall be delivered to
the addresses set forth below, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice:


 


10

















 


	
  (i)

  	
   

  	
  if to the Holder, to:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Raul Zepeda

  	
   

  
	
   

  	
   

  	
  Avenida Insurgentes Sur #3500, PB

  	
   

  
	
   

  	
   

  	
  Colonia Peña Pobre

  	
   

  
	
   

  	
   

  	
  Delegación Tlalpan, CP

  	
   

  
	
   

  	
   

  	
  14060 México D.F., México

  	
   

  
	
   

  	
   

  	
  Telecopy No.:

  	
  (52) 55 5520 0525

  
	
   

  	
   

  	
  Confirmation No.:

  	
  (52) 55 5325 0505

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Jorge Juantorena and Duane McLaughlin

  	
   

  
	
   

  	
   

  	
  Cleary Gottlieb Steen & Hamilton LLP

  	
   

  
	
   

  	
   

  	
  One Liberty Plaza

  	
   

  
	
   

  	
   

  	
  New York, NY 10006

  	
   

  
	
   

  	
   

  	
  Telecopy No.:

  	
  (212) 225-3999

  
	
   

  	
   

  	
  Confirmation No.:

  	
  (212) 225-2758

  
	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  if to the Company, to:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The New York Times Company

  	
   

  
	
   

  	
   

  	
  620 Eighth Avenue

  	
   

  
	
   

  	
   

  	
  New York, New York 10018

  	
   

  
	
   

  	
   

  	
  Telecopy No.:

  	
  (212) 556-4634

  
	
   

  	
   

  	
  Confirmation No.:

  	
  (212) 556-1234

  
	
   

  	
   

  	
  Attention: General Counsel

  	
   

  
						



 


2.5            Entire
Agreement.  This
Agreement constitutes the entire understanding and agreement between the
parties with regard to the subjects hereof, and supersedes any and all prior
understandings and agreements, whether oral or written, between or among the
parties hereto with respect to the specific subject matter hereof; provided,
however, that nothing in this Agreement shall be deemed to terminate or
supersede the provisions of the Securities Purchase Agreement.


 


2.6           Governing Law. This
Agreement shall be governed in all respects by the internal Laws of the State
of New York without regard to principles of conflict of laws.


 


2.7           Severability.  If any paragraph, provision or clause of this
Agreement shall be found or be held to be illegal, invalid or unenforceable,
the remainder of this Agreement shall be valid and enforceable and the parties
shall use good faith to negotiate a substitute, valid and enforceable provision
that most nearly effects the parties’ intent in entering into this Agreement.


 


2.8           Third Parties. Nothing in
this Agreement, express or implied, is intended to confer upon any person,
other than the parties hereto, each Indemnified Party, and each of


 


11

















 


their
respective successors and assigns, any rights or remedies under or by reason of
this Agreement.


 


2.9           Titles and Headings. The titles,
captions and headings of this Agreement are included for ease of reference only
and shall be disregarded in interpreting or construing this Agreement. Unless
otherwise specifically stated, all references herein to “sections” and “exhibits”
will mean “sections” and “exhibits,” respectively, to this Agreement.


 


2.10         Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one instrument.


 


2.11
        Costs And
Attorneys’ Fees.  In the
event that any action, suit or other proceeding is instituted concerning or
arising out of this Agreement or any transaction contemplated hereunder, the
prevailing party shall be entitled to recover all of such party’s actual costs
and attorneys’ fees and disbursements incurred in each such action, suit or
other proceeding, including any and all appeals or petitions therefrom.


 


2.13        Further Assurances. The parties agree to
execute all such further documents and instruments and to take all such further
actions as may be reasonably necessary or appropriate to carry out the purposes
and intent of this Agreement.


 


2.14        Facsimile Signatures.  This Agreement may be executed and delivered
by facsimile and upon such delivery the facsimile signature will be deemed to
have the same effect as if the original signature had been delivered to the
other party.


 


2.15         Enforcement.  The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached.  Accordingly, each of the
parties shall be entitled to specific performance of the terms hereof,
including an injunction or injunctions to prevent breaches of this Agreement in
addition to any other remedy to which each party is entitled at law or in
equity.  Each of the parties further
hereby waives (a) any defense in any action for specific performance that
a remedy at law would be adequate and (b) any requirement under any law to
post security as a prerequisite to obtaining equitable relief.


 


2.16         No Presumption Against
Drafting Party.  Each party
acknowledges that it has been represented by counsel in connection with this
Agreement.  Accordingly, any rule of
law or any legal decision that would require interpretation of any claimed
ambiguities in this Agreement against the drafting party has no application and
is expressly waived.


 


[Signature page follows.]


 


12

















 


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


 


	
   

  	
  THE
  NEW YORK TIMES COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INMOBILIARIA
  CARSO, S.A. DE C.V.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANCO INBURSA S.A., INSTITUCIÓN DE

  BANCA MÚLTIPLE GRUPO FINANCIERO

  INBURSA

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


13
















 


EXHIBIT 4(A).4


 


FORM OF OPINIONS OF SPECIAL COUNSEL

TO AND GENERAL COUNSEL OF THE COMPANY


 


Matters To Be Covered in

Opinions of Special Counsel to and General Counsel of the Company


 


1.                                       Each
of the Company and its Significant Subsidiaries being validly existing and in
good standing (based solely on good standing certificates from the relevant
jurisdictions) and the Company having requisite corporate power and authority
to issue and sell the Notes and Warrants and to execute, deliver and perform
its obligations under the transaction documents.


 


2.                                       Each
of the Company and its Significant Subsidiaries being duly qualified and in
good standing as a foreign corporation in appropriate jurisdictions.


 


3.                                       Due
authorization and execution and delivery of the transaction documents and such
transaction documents being legal, valid, binding and enforceable.


 


4.                                       Execution,
delivery and performance of the transaction documents does not conflict with
charter documents or laws.


 


5.                                       Execution,
delivery and performance of the transaction documents does not conflict with
material agreements.


 


6. All
consents required to issue and sell the Notes and the Warrants and to execute,
deliver and perform the transaction documents having been obtained.


 


7.                                       No
litigation questioning validity of documents.


 


8.                                       The
shares of Class A Common Stock issuable upon exercise of the Warrants have
been duly authorized and reserved for issuance upon exercise of the Warrants
and when so issued in accordance with the terms of the Warrants will be validly
issued, fully paid and non-assessable.


 


9.                                       Neither
the Notes nor the Warrants require registration under the Securities Act of
1933, as amended; no need to qualify an indenture under the Trust Indenture Act
of 1939, as amended.


 


10.                                 No
violation of Regulations T, U or X of the Federal Reserve Board.


 


11.                                 Company
not an “investment company”, or a company “controlled” by an “investment
company”, under the Investment Company Act of 1940, as amended.


 


12.                                 Such
other opinions as may be reasonably requested by the Purchasers.


 


EXHIBIT 4(A).4


(to Securities Purchase Agreement)


 


1

















 


Opinions in
numbered items 1 (as to the Alabama and Massachusetts entities), 2 and 7 may be
delivered by internal counsel; all other opinions to be delivered by external
counsel.


 


2