CONFORMED COPY
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COMPETITIVE ADVANCE AND REVOLVING CREDIT AGREEMENT
among
GANNETT CO., INC.,
The Several Lenders
from Time to Time Parties Hereto,
BANK OF AMERICA, N.A.,
as Administrative Agent,
JPMORGAN CHASE BANK
and
BANK ONE, NA,
as Co-Syndication Agents,
and
BARCLAYS BANK PLC,
as Documentation Agent
Dated as of March 11, 2002
Effective Date as of _________, 2002
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BANC OF AMERICA SECURITIES LLC
and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page
----
ARTICLE I Definitions............................................................................1
Section 1.1 Defined Terms..........................................................................1
Section 1.2 Other Definitional Provisions.........................................................12
ARTICLE II Amount and Terms of the Facilities....................................................13
Section 2.1 Revolving Credit Commitments..........................................................13
Section 2.2 Procedure for Revolving Credit Borrowing..............................................14
Section 2.3 Competitive Borrowings................................................................15
Section 2.4 Termination or Reduction of Commitments...............................................18
Section 2.5 Optional Prepayments..................................................................18
Section 2.6 Conversion and Continuation Options...................................................19
Section 2.7 Minimum Amounts of Eurodollar Borrowings..............................................19
Section 2.8 Repayment of Loans; Evidence of Debt..................................................19
Section 2.9 Interest Rates and Payment Dates......................................................20
Section 2.10 Fees..................................................................................21
Section 2.11 Computation of Interest and Fees......................................................22
Section 2.12 Inability to Determine Interest Rate..................................................22
Section 2.13 Pro Rata Treatment and Payments.......................................................23
Section 2.14 Requirements of Law...................................................................24
Section 2.15 Taxes.................................................................................25
Section 2.16 Indemnity.............................................................................27
Section 2.17 Change of Lending Office..............................................................27
Section 2.18 Replacement of Lenders................................................................27
ARTICLE III Representations and Warranties........................................................28
Section 3.1 Organization; Powers..................................................................28
Section 3.2 Financial Condition; No Material Adverse Effect.......................................28
Section 3.3 Properties............................................................................29
Section 3.4 Litigation............................................................................29
Section 3.5 No Conflicts..........................................................................29
Section 3.6 Taxes.................................................................................29
Section 3.7 Authorization; Enforceability.........................................................29
Section 3.8 Environmental Matters.................................................................29
Section 3.9 No Change.............................................................................30
Section 3.10 Federal Regulations...................................................................30
Section 3.11 No Default............................................................................30
Section 3.12 Investment Company Act; Federal Regulations...........................................30
ARTICLE IV Conditions............................................................................30
ARTICLE V Affirmative Covenants.................................................................31
Section 5.1 Financial Statements and Other Information............................................31
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Section 5.2 Payment of Obligations................................................................32
Section 5.3 Books and Records; Inspection Rights..................................................32
Section 5.4 Notices of Material Events............................................................32
Section 5.5 Existence; Conduct of Business........................................................33
Section 5.6 Maintenance of Properties; Insurance..................................................33
Section 5.7 Compliance with Laws..................................................................33
Section 5.8 Debt Ratings..........................................................................33
ARTICLE VI Negative Covenants......................................................................33
Section 6.1 Liens.................................................................................33
Section 6.2 Fundamental Changes...................................................................34
Section 6.3 Shareholders' Equity..................................................................34
ARTICLE VII Events of Default.......................................................................34
Section 7.1 Events of Default.....................................................................34
Section 7.2 Remedies..............................................................................36
ARTICLE VIII The Administrative Agent................................................................36
Section 8.1 Appointment...........................................................................36
Section 8.2 Delegation of Duties..................................................................36
Section 8.3 Exculpatory Provisions................................................................37
Section 8.4 Reliance by Administrative Agent......................................................37
Section 8.5 Notice of Default.....................................................................37
Section 8.6 Non-Reliance on Administrative Agent and Other Lenders................................38
Section 8.7 Indemnification.......................................................................38
Section 8.8 Agent in Its Individual Capacity......................................................38
Section 8.9 Successor Administrative Agent........................................................39
Section 8.10 Syndication Agent.....................................................................39
ARTICLE IX Miscellaneous...........................................................................39
Section 9.1 Amendments and Waivers................................................................39
Section 9.2 Notices...............................................................................40
Section 9.3 No Waiver; Cumulative Remedies........................................................41
Section 9.4 Survival of Representations and Warranties............................................41
Section 9.5 Payment of Expenses and Taxes.........................................................41
Section 9.6 Successors and Assigns; Participations and Assignments................................43
Section 9.7 Adjustments; Set-off..................................................................45
Section 9.8 Counterparts..........................................................................45
Section 9.9 Severability..........................................................................46
Section 9.10 Integration...........................................................................46
SECTION 9.11 GOVERNING LAW.........................................................................46
Section 9.12 Submission To Jurisdiction; Waivers...................................................46
Section 9.13 Acknowledgements......................................................................46
Section 9.14 Confidentiality.......................................................................47
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SCHEDULES
1.1 Commitments
EXHIBITS
A Form of Addendum
B Form of Assignment and Acceptance
C-1 Form of Competitive Bid Request
C-2 Form of Invitation for Competitive Bids
C-3 Form of Competitive Bid
C-4 Form of Competitive Bid Accept/Reject Letter
D-1 Form of New Lender Supplement
D-2 Form of Incremental Facility Activation Notice
E Form of Exemption Certificate
F Form of Opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
G Form of Compliance Certificate
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COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY, dated as of
March 11, 2002, among GANNETT CO., INC., a Delaware corporation ("Gannett"), the
several banks and other financial institutions from time to time parties to this
Agreement (the "Lenders"), BANK OF AMERICA, N.A., as administrative agent for
the Lenders hereunder (in such capacity, the "Administrative Agent"), JPMORGAN
CHASE BANK and BANK ONE, NA, as co-syndication agents (the "Co-Syndication
Agents"), and BARCLAYS BANK PLC, as documentation agent (the "Documentation
Agent").
The parties agree as follows:
ARTICLE I
Definitions
Section 1.1 Defined Terms. The following words and terms shall
have the following meanings in this Agreement:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Federal Funds Effective Rate for any reason, the
ABR shall be determined without regard to clause (b) of the first sentence of
this definition until the circumstances giving rise to such inability no longer
exist. Any change in the ABR due to a change in the Prime Rate or the Federal
Funds Effective Rate shall be effective as of the opening of business on the
effective day of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is
based upon the ABR.
"Addendum": an instrument, substantially in the form of
Exhibit A, by which a Lender becomes a party to this Agreement as of the
Effective Date.
"Adjusted Consolidated Total Interest Expense": Gannett's
total interest expense plus amortization of debt discount for the four fiscal
quarters immediately preceding the date of determination, plus interest charges
for such four-quarter period. For the purposes of calculating Adjusted
Consolidated Total Interest Expense for any period of four consecutive fiscal
quarters (each, a "Reference Period"), (i) if at any time during such Reference
Period Gannett or any Subsidiary shall have made any Material Disposition, the
Adjusted Consolidated Total Interest Expense for such Reference Period shall be
reduced by an amount equal to the Adjusted Consolidated Total Interest Expense
(if positive) attributable to the indebtedness that is repaid or transferred in
connection with such Material Disposition for such Reference Period or increased
by an amount equal to the Adjusted Consolidated Total Interest Expense (if
negative) attributable thereto for such Reference Period and (ii) if during such
Reference Period Gannett or any Subsidiary shall have made a Material
Acquisition, Adjusted Consolidated Total Interest Expense for such Reference
Period shall be calculated after giving pro forma effect thereto as if such
Material Acquisition occurred on the first day of such Reference Period.
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"Aggregate Commitment Percentage": as to any Lender at any
time, the percentage which such Lender's Commitment then constitutes of the
aggregate Commitments (or, at any time after the Commitments shall have expired
or terminated, the percentage which the aggregate principal amount of such
Lender's Loans then outstanding constitutes of the aggregate principal amount of
the Loans then outstanding).
"Agreement": this Competitive Advance and Revolving Credit
Agreement, as amended, supplemented or otherwise modified from time to time.
"Applicable Margin": the appropriate rate per annum set forth
in the table below opposite the applicable Facility:
Credit Status 364-Day Facility Five-Year Facility
------------- ---------------- ------------------
Credit Status 1 20.00 Basis Points 18.00 Basis Points
Credit Status 2 19.00 Basis Points 17.00 Basis Points
Credit Status 3 23.00 Basis Points 21.00 Basis Points
Credit Status 4 40.00 Basis Points 37.50 Basis Points
Credit Status 5 47.50 Basis Points 45.00 Basis Points
Credit Status 6 55.00 Basis Points 50.00 Basis Points
"Assignee": as defined in Section 9.6(c).
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit B.
"Basis Point": 1/100th of one percent.
"Board": the Board of Governors of the Federal Reserve System,
or any successor thereto.
"Borrowing": a group of Loans of a single Type made by the
Lenders (or, in the case of a Competitive Borrowing, by the Lender or Lenders
whose Competitive Bids have been accepted pursuant to Section 2.3) on a single
date and as to which a single Interest Period is in effect.
"Borrowing Date": any Business Day specified by Gannett as a
date on which Gannett requests the relevant Lenders to make Loans hereunder.
"Business Day": each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a legal holiday for banks in Dallas, Texas or the State of
New York; provided, that with respect to notices and determinations in
connection with, and payments of principal and interest on, Eurodollar Loans,
such day is also a day for trading by and between banks in Dollar deposits in
the interbank eurodollar market.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
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"Commitment": as to any Lender, the sum of its 364-Day
Commitment, Five-Year Commitment and commitment under the Incremental Facility,
if any.
"Commitment Utilization Percentage": on any day, the
percentage equivalent of a fraction (a) the numerator of which is the sum of the
aggregate outstanding principal amount of all Loans and (b) the denominator of
which is the Total Commitment (or, on any day after termination of the
Commitments, the Total Commitment in effect immediately preceding such
termination).
"Competitive Bid": an offer by a Lender to make a Competitive
Loan pursuant to Section 2.3.
"Competitive Bid Accept/Reject Letter": a notification made by
Gannett pursuant to Section 2.3(f) in the form of Exhibit C-4.
"Competitive Bid Rate": as to any Competitive Bid made by a
Lender pursuant to Section 2.3, (i) in the case of a Eurodollar Competitive
Loan, the Eurodollar Rate plus (or minus) the Margin, and (ii) in the case of a
Fixed Rate Loan, the fixed rate of interest offered by the Lender making such
Competitive Bid.
"Competitive Bid Request": a request made pursuant to Section
2.3(b) in the form of Exhibit C-1.
"Competitive Borrowing": a Borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or Lenders
whose Competitive Bids for such Borrowing have been accepted by Gannett under
the bidding procedure described in Section 2.3.
"Competitive Loan": a Loan (which shall be a Eurodollar
Competitive Loan or a Fixed Rate Loan) made by a Lender pursuant to the bidding
procedure described in Section 2.3.
"Conduit Lender": any special purpose corporation organized
and administered by any Lender for the purpose of making Loans hereunder
otherwise required to be made by such Lender and designated by such Lender in a
written instrument, subject to the consent of the Administrative Agent and
Gannett; provided, that the designation by any Lender of a Conduit Lender shall
not relieve the designating Lender of any of its obligations to fund a Loan
under this Agreement if, for any reason, its Conduit Lender fails to fund any
such Loan, and the designating Lender (and not the Conduit Lender) shall have
the sole right and responsibility to deliver all consents and waivers required
or requested under this Agreement with respect to its Conduit Lender, and
provided, further, that no Conduit Lender shall (a) be entitled to receive any
greater amount pursuant to Section 2.14, 2.15, 2.16 or 9.5 than the designating
Lender would have been entitled to receive in respect of the extensions of
credit made by such Conduit Lender or (b) be deemed to have any Commitment
hereunder.
"Consolidated EBITDA": Gannett's consolidated net income for
the four fiscal quarters immediately preceding the date of determination
(excluding extraordinary income or loss) less, without duplication, any other
non-recurring gains or losses plus (a) the sum of all Federal and state income
taxes, (b) total interest charges, including amortization of debt discount
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or premium and the interest component of capitalized leases and (c) depreciation
and amortization expense. For the purposes of calculating Consolidated EBITDA
for any period of four consecutive fiscal quarters (each, a "Reference Period"),
(i) if at any time during such Reference Period Gannett or any Subsidiary shall
have made any Material Disposition, the Consolidated EBITDA for such Reference
Period shall be reduced by an amount equal to the Consolidated EBITDA (if
positive) attributable to the property that is the subject of such Material
Disposition for such Reference Period or increased by an amount equal to the
Consolidated EBITDA (if negative) attributable thereto for such Reference Period
and (ii) if during such Reference Period Gannett or any Subsidiary shall have
made a Material Acquisition, Consolidated EBITDA for such Reference Period shall
be calculated after giving pro forma effect thereto as if such Material
Acquisition occurred on the first day of such Reference Period.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Status": any of Credit Status 1, Credit Status 2,
Credit Status 3, Credit Status 4, Credit Status 5 or Credit Status 6. In
determining whether Credit Status 1, Credit Status 2, Credit Status 3, Credit
Status 4, Credit Status 5 or Credit Status 6 shall apply in any circumstance, if
the applicable ratings by S&P and ▇▇▇▇▇'▇ differ, the higher of the two ratings
will be determinative, unless the applicable ratings by S&P and ▇▇▇▇▇'▇ are more
than one level apart, in which case the Credit Status one level below the higher
rating will be determinative. In the event that Gannett's senior unsecured
long-term debt is rated by only one of S&P and ▇▇▇▇▇'▇, then that single rating
shall be determinative.
"Credit Status 1" shall exist upon the occurrence of the
higher of a rating by S&P of Gannett's senior unsecured long-term debt of at
least A+ or a rating by ▇▇▇▇▇'▇ of Gannett's senior unsecured long-term debt of
at least A1.
"Credit Status 2" shall exist upon the occurrence of the
higher of a rating by S&P of Gannett's senior unsecured long-term debt of at
least A but lower than A+ or a rating by ▇▇▇▇▇'▇ of Gannett's senior unsecured
long-term debt of at least A2 but lower than A1.
"Credit Status 3" shall exist upon the occurrence of the
higher of a rating by S&P of Gannett's senior unsecured long-term debt of at
least A- but lower than A or a rating by ▇▇▇▇▇'▇ of Gannett's senior unsecured
long-term debt of at least A3 but lower than A2.
"Credit Status 4" shall exist upon the occurrence of the
higher of a rating by S&P of Gannett's senior unsecured long-term debt of at
least BBB+ but lower than A- or a rating by ▇▇▇▇▇'▇ of Gannett's senior
unsecured long-term debt of at least Baa1 but lower than A3.
"Credit Status 5" shall exist upon the occurrence of the
higher of a rating by S&P of Gannett's senior unsecured long-term debt of at
least BBB but lower than BBB+ or a rating by ▇▇▇▇▇'▇ of Gannett's senior
unsecured long-term debt of at least Baa2 but lower than Baa1.
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"Credit Status 6" shall exist upon the occurrence of the
higher of a rating by S&P of Gannett's senior unsecured long-term debt of lower
than BBB or a rating by ▇▇▇▇▇'▇ of Gannett's senior unsecured long-term debt of
lower than Baa2.
"Default": any of the events specified in Section 7.1, whether
or not any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Effective Date": the date identified by Gannett in a written
notice to the Administrative Agent, which date shall be at least one Business
Day after receipt by the Administrative Agent of such notice and shall, in any
case, occur no later than April 30, 2002.
"Environmental Laws": any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and emergency
reserves under any regulations of the Board or other Governmental Authority
having jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of the Board) maintained by a member bank of such
System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Telerate screen as of 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period. In the event that such rate
does not appear on Page 3750 of the Dow ▇▇▇▇▇ Markets screen (or otherwise on
such screen), the "Eurodollar Base Rate" shall be determined by reference to
such other comparable publicly available service for displaying eurodollar rates
as may be selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is
offered Dollar deposits at or about 11:00 A.M., Dallas, Texas time, two Business
Days prior to the beginning of such Interest Period in the interbank eurodollar
market where its eurodollar and foreign currency and exchange operations are
then being conducted for delivery on the first day of such Interest Period for
the number of days comprised therein.
"Eurodollar Borrowing": a Borrowing comprised of Eurodollar
Loans.
6
"Eurodollar Competitive Loan": any Competitive Loan bearing
interest at a rate determined by reference to the Eurodollar Rate.
"Eurodollar Loan": any Eurodollar Competitive Loan or
Eurodollar Revolving Credit Loan.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Revolving Credit Loan": any Revolving Credit Loan
bearing interest at a rate determined by reference to the Eurodollar Rate.
"Event of Default": any of the Events of Default specified in
Section 7.1 of this Agreement.
"Excess Utilization Day": each day on which the Commitment
Utilization Percentage exceeds 50%.
"Extended Date": as defined in Section 2.8(b) of this
Agreement.
"Extended Loans": as defined in Section 2.8(b) of this
Agreement.
"Facility": each of the 364-Day Facility, the Five-Year
Facility and the Incremental Facility.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the average
of the quotations for such day of such rates on such transactions received by
the Administrative Agent from three federal funds brokers of recognized standing
selected by it.
"Five-Year Available Commitment": as to any Five-Year Lender
at any time, the excess, if any, of such Five-Year Lender's Five-Year Commitment
over such Five-Year Lender's Five-Year Loans.
"Five-Year Commitment": as to any Lender, the obligation of
such Lender, if any, to make Five-Year Loans in an aggregate principal and/or
face amount not to exceed the amount set forth under the heading "Five-Year
Commitment" opposite such Lender's name on Schedule 1.1 or in the Assignment and
Acceptance or New Lender Supplement pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the terms
hereof.
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"Five-Year Commitment Percentage": as to any Five-Year Lender
at any time, the percentage which such Five-Year Lender's Five-Year Commitment
then constitutes of the aggregate Five-Year Commitments (or, at any time after
the Five-Year Commitments shall have expired or terminated, the percentage which
the aggregate principal amount of such Five-Year Lender's Five-Year Loans then
outstanding constitutes of the aggregate principal amount of the Five-Year Loans
then outstanding).
"Five-Year Commitment Period": the period from and including
the Effective Date to the Five-Year Termination Date.
"Five-Year Competitive Loans": Competitive Loans made under
the Five-Year Facility.
"Five-Year Facility": the Five-Year Commitments and the Loans
made thereunder.
"Five-Year Lender": each Lender that has a Five-Year
Commitment or that holds Five-Year Loans.
"Five-Year Loans": as defined in Section 2.1(b).
"Five-Year Termination Date": the fifth anniversary of the
Effective Date.
"Fixed Rate Borrowing": a Borrowing comprised of Fixed Rate
Loans.
"Fixed Rate Loan": any Competitive Loan bearing interest at a
fixed percentage rate per annum specified by the Lender making such Loan in its
Competitive Bid.
"GAAP": generally accepted accounting principles in the United
States as in effect from time to time and consistent with those used in the
preparation of the most recent audited financial statements referred to in
Section 3.2. In the event that any "Accounting Change" (as defined below) shall
occur and such change results in a material change in the method of calculation
of financial covenants, standards or terms in this Agreement, then Gannett and
the Administrative Agent agree to enter into negotiations in order to amend such
provisions of this Agreement so as to equitably reflect such Accounting Changes
with the desired result that the criteria for evaluating Gannett's financial
condition shall be the same after such Accounting Changes as if such Accounting
Changes had not been made. Until such time as such an amendment shall have been
executed and delivered by Gannett, the Administrative Agent and the Required
Lenders, all financial covenants, standards and terms in this Agreement shall
continue to be calculated or construed as if such Accounting Changes had not
occurred. "Accounting Changes" refers to changes in accounting principles
required 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 Securities and Exchange
Commission.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any agency, authority,
instrumentality, regulatory body, court, central
8
bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative functions of or pertaining to government.
"Incremental Facility Activation Notice": a notice
substantially in the form of Exhibit D-2.
"Incremental Facility": as defined in Section 2.1(d).
"Incremental Facility Closing Date": any Business Day
designated as such in an Incremental Facility Activation Notice.
"Incremental Facility Commitment": as to any Lender, the
obligation of such Lender, if any, to make Incremental Loans in an aggregate
principal amount not to exceed the amount set forth in the applicable
Incremental Facility Activation Notice or in the Assignment and Acceptance or
New Lender Supplement pursuant to which such Lender became a party hereto, as
the same may be changed from time to time pursuant to the terms hereof.
"Incremental Facility Lenders": (a) on any Incremental
Facility Closing Date relating to Incremental Loans, the Lenders signatory to
the relevant Incremental Facility Activation Notice and (b) thereafter, each
Lender that is a holder of an Incremental Loan.
"Incremental Facility Maturity Date": with respect to the
Incremental Loans, the maturity date specified in such Incremental Facility
Activation Notice, which date shall be either (a) the date that is 364 days
after the Incremental Facility Closing Date or (b) a date at least six months
after the final maturity of the Five-Year Loans.
"Incremental Loans": as defined in Section 2.1(d).
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan is
outstanding and on the date such Loan is paid in full, (b) as to any Eurodollar
Loan or Fixed Rate Loan, the last day of the Interest Period applicable thereto
and (c) as to any Eurodollar Loan or Fixed Rate Loan having an Interest Period
longer than three months or 90 days, as the case may be, each day which is three
months or 90 days, respectively, after the first day of the Interest Period
applicable thereto; provided that, in addition to the foregoing, each of (x) the
date upon which both the Commitments have been terminated and the Loans have
been paid in full and (y) the Termination Date shall be deemed to be an
"Interest Payment Date" with respect to any interest which is then accrued
hereunder.
"Interest Period": (a) with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six (or if
available to all the Lenders (or, in the case of Eurodollar
Competitive Loans, the Lender making such Loans) nine) months
thereafter, as selected by Gannett in its notice of borrowing
or notice of conversion, as the case may be, given with
respect thereto; and
9
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan
and ending one, two, three or six (or if available to all the
Lenders (or, in the case of Eurodollar Competitive Loans, the
Lender making such Loans) nine) months thereafter, as selected
by Gannett by irrevocable notice to the Administrative Agent
not less than three Business Days prior to the last day of the
then current Interest Period with respect thereto; and
(b) with respect to any Fixed Rate Loan, the period commencing on
the Borrowing Date with respect to such Fixed Rate Loan and
ending such number of days thereafter (which shall be not less
than seven days or more than 360 days after the date of such
borrowing) as selected by Gannett in its Competitive Bid
Request given with respect thereto.
provided that all of the foregoing provisions relating to Interest Periods are
subject to the following:
(A) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless, in the case of an
Interest Period pertaining to a Eurodollar Loan, the result of
such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day; and
(B) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a
calendar month.
"Invitation for Competitive Bids": an invitation made by
Gannett pursuant to Section 2.3(c) in the form of Exhibit C-2.
"Lender Affiliate": (a) any affiliate of any Lender, (b) any
Person that is administered or managed by any Lender and that is engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business and (c) with
respect to any Lender which is a fund that invests in commercial loans and
similar extensions of credit, any other fund that invests in commercial loans
and similar extensions of credit and is managed or advised by the same
investment advisor as such Lender or by an affiliate of such Lender or
investment advisor.
"Lenders": as defined in the preamble hereto; provided, that
unless the context otherwise requires, each reference herein to the Lenders
shall be deemed to include any Conduit Lender.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever
10
(including any conditional sale or other title retention agreement and any
capital lease having substantially the same economic effect as any of the
foregoing).
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Margin": as to any Eurodollar Competitive Loan, the margin to
be added to or subtracted from the Eurodollar Rate in order to determine the
interest rate applicable to such Loan, as specified in the Competitive Bid
relating to such Loan.
"Material": when used to describe an adverse effect or an
event on Gannett or its Subsidiaries, shall mean a condition, event or act
which, with the giving of notice or lapse of time or both, will constitute a
Default or an Event of Default.
"Material Adverse Effect": a Material adverse effect on (a)
the business, assets, operations or condition, financial or otherwise, of
Gannett and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement or the material rights or remedies of the
Administrative Agent and the Lenders hereunder.
"Material Acquisition": any acquisition or series of related
acquisitions that (a) constitutes assets comprising all or substantially all of
an operating unit of a business or constitutes all or substantially all of the
common stock of a Person (it being understood that any minority interests in
such a Person not acquired by Gannett or any Subsidiary shall be disregarded, to
the extent appropriate under relevant accounting principles or rules, in
determining "Consolidated EBITDA" or "Adjusted Consolidated Total Interest
Expense", as the case may be) and (b) involves the payment of consideration
(including by way of assumption of indebtedness) by Gannett and its Subsidiaries
in excess of $50,000,000.
"Material Disposition": means any disposition of assets
comprising all or substantially all of an operating unit of a business or all or
substantially all of the common stock of a Person (it being understood that any
minority interests in such a Person not disposed of by Gannett or any Subsidiary
shall be included, to the extent appropriate under relevant accounting
principles or rules, in determining "Consolidated EBITDA" or "Adjusted
Consolidated Total Interest Expense", as the case may be) that yields gross cash
or common stock proceeds to, or results in the assumption by a third party of
indebtedness of, Gannett or any of its Subsidiaries in excess of $50,000,000.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc. and its successors;
provided, however, that if Moody's ceases rating securities similar to the
senior unsecured long-term debt of the Borrower and its ratings and business
with respect to such securities shall not have been transferred to any
successor, then "Moody's" shall mean any other nationally recognized rating
agency (other than S&P) selected by the Borrower and approved by the
Administrative Agent (not to be unreasonably withheld or delayed) that rates any
senior unsecured long-term debt of the Borrower.
"Net Property, Plant and Equipment": the amount under that
heading on the consolidated balance sheet of Gannett and its Subsidiaries
prepared in accordance with GAAP.
11
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Participant": as defined in Section 9.6(b).
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
Prime Rate": the rate of interest per annum publicly announced
from time to time by Bank of America, N.A. as its prime rate in effect at its
principal office in Dallas, Texas (the Prime Rate not being intended to be the
lowest rate of interest charged by Bank of America, N.A. in connection with
extensions of credit to debtors).
"Register": as defined in Section 9.6(d).
"Required Lenders": at any time, the holders of more than 50%
of the Total Commitments then in effect or, if the Commitments have been
terminated, the Total Extensions of Credit then outstanding.
"Requirement of Law": as to any Person, any law, treaty, rule
or regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"Revolving Credit Loans": as defined in Section 2.1(b), and,
in any event include, any 364-Day Loans that remain outstanding after the
364-Day Termination Date pursuant to Section 2.8.
"S&P": Standard & Poor's Corporation and its successors;
provided, however, that if S&P ceases rating securities similar to the senior
unsecured long-term debt of the Borrower and its ratings and business with
respect to such securities shall not have been transferred to any successor,
then "S&P" shall mean any other nationally recognized rating agency (other than
Moody's) selected by the Borrower and approved by the Administrative Agent (not
to be unreasonably withheld or delayed) that rates any senior unsecured
long-term debt of the Borrower.
"Subsidiary": any corporation the majority of the shares of
voting stock of which at any time outstanding is owned directly or indirectly by
Gannett or by one or more of its other subsidiaries or by Gannett in conjunction
with one or more of its other subsidiaries.
"364-Day Available Commitment": as to any 364-Day Lender at
any time, the excess, if any, of such 364-Day Lender's 364-Day Commitment over
such 364-Day Lender's 364-Day Loans.
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"364-Day Commitment": as to any Lender, the obligation of such
Lender, if any, to make 364-Day Loans in an aggregate principal and/or face
amount not to exceed the amount set forth under the heading "364-Day Commitment"
opposite such Lender's name on Schedule 1.1 or in the Assignment and Acceptance
or New Lender Supplement pursuant to which such Lender became a party hereto, as
the same may be changed from time to time pursuant to the terms hereof.
"364-Day Commitment Percentage": as to any 364-Day Lender at
any time, the percentage which such 364-Day Lender's 364-Day Commitment then
constitutes of the aggregate 364-Day Commitments (or, at any time after the
364-Day Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such 364-Day Lender's 364-Day Loans then
outstanding constitutes of the aggregate principal amount of the 364-Day Loans
then outstanding).
"364-Day Commitment Period": the period from and including the
Effective Date to the 364-Day Termination Date.
"364-Day Competitive Loans": Competitive Loans made under the
364-Day Facility.
"364-Day Facility": the 364-Day Commitments and the Loans made
thereunder.
"364-Day Lender": each Lender that has a 364-Day Commitment or
that holds 364-Day Loans.
"364-Day Loans": as defined in Section 2.1(a).
"364-Day Termination Date": the date which is 364 days after
the Effective Date; provided that if such date is not a Business Day, the
364-Day Termination Date shall be the Business Day immediately preceding such
date.
"Total Commitments": at any time, the aggregate amount of the
Commitments then in effect.
"Total Extensions of Credit": at any time, the aggregate
amount of all Loans of the Lenders outstanding at such time.
"Total Shareholders' Equity": the amount appearing under that
heading on the consolidated balance sheet of Gannett and its Subsidiaries,
prepared in accordance with GAAP.
"Transferee": any Assignee or Participant.
"Type": as to any Revolving Credit Loan, its nature as an ABR
Loan or a Eurodollar Loan, and as to any Competitive Loan, its nature as a
Eurodollar Competitive Loan or a Fixed Rate Loan.
Section 1.2 Other Definitional Provisions.
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(a) Unless otherwise specified therein, all terms defined in
this Agreement shall have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto.
(b) As used herein, and any certificate or other document made
or delivered pursuant hereto, accounting terms relating to Gannett and its
Subsidiaries not defined in Section 1.1 and accounting terms partly defined in
Section 1.1, to the extent not defined, shall have the respective meanings given
to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
ARTICLE II
Amount and Terms of the Facilities
Section 2.1 Revolving Credit Commitments. (a) Subject to the
terms and conditions hereof, each 364-Day Lender severally agrees to make
revolving credit loans ("364-Day Loans") to Gannett from time to time during the
364-Day Commitment Period in an aggregate principal amount at any one time
outstanding which does not exceed the amount of such Lender's 364-Day
Commitment. During the 364-Day Commitment Period, Gannett may use the 364-Day
Commitments by borrowing, prepaying the 364-Day Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
Notwithstanding anything to the contrary contained in this Agreement, in no
event (after giving effect to the use of proceeds of any Borrowing) shall (i)
the amount of any Lender's 364-Day Commitment Percentage of a Borrowing of
364-Day Loans exceed such Lender's 364-Day Available Commitment at the time of
such Borrowing or (ii) the aggregate amount of 364-Day Credit Loans and 364-Day
Competitive Loans at any one time outstanding exceed the aggregate 364-Day
Commitments then in effect of all Lenders.
(b) Subject to the terms and conditions hereof, each Five-Year
Lender severally agrees to make revolving credit loans ("Five-Year Loans", and,
together with the 364-Day Loans, "Revolving Credit Loans") to Gannett from time
to time during the Five-Year Commitment Period in an aggregate principal amount
at any one time outstanding which does not exceed the amount of such Lender's
Five-Year Commitment. During the Five-Year Commitment Period, Gannett may use
the Five-Year Commitments by borrowing, prepaying the Five-Year Loans in whole
or in part, and reborrowing, all in accordance with the terms and conditions
hereof. Notwithstanding anything to the contrary contained in this Agreement, in
no event (after giving effect to the use of proceeds of any Borrowing) shall (i)
the amount of any Lender's Five-Year Commitment Percentage of a Borrowing of
Five-Year Loans exceed such Lender's Five-Year Available Commitment at the time
of such Borrowing or (ii) the aggregate
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amount of Five-Year Loans and Five-Year Competitive Loans at any one time
outstanding exceed the aggregate Five-Year Commitments then in effect of all
Lenders.
(c) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by Gannett and notified to the Administrative Agent in accordance with Sections
2.2 and 2.6; provided that no 364-Day Loan shall be made as a Eurodollar Loan
after the day that is one month prior to the 364-Day Termination Date and no
Five-Year Loan shall be made as a Eurodollar Loan after the day that is one
month prior to the Five-Year Termination Date.
(d) Gannett (upon receipt of requisite authorization from its
Board of Directors) and any one or more Lenders (including New Lenders) may from
time to time agree that such Lenders shall (x) make available to Gannett an
additional credit facility (the "Incremental Facility" and any loans thereunder,
the "Incremental Loans"), which credit facility shall take the form of either a
364-day revolving credit facility and/or a revolving credit facility which
matures at least six months after the Five-Year Termination Date and/or (y)
increase the amount of their 364-Day Commitment and/or Five-Year Commitment, or
(in the case of a New Lender) make available a 364-Day Commitment and/or
Five-Year Commitment, in any such case by executing and delivering to the
Administrative Agent an Incremental Facility Activation Notice specifying (i)
the aggregate principal amount of such increase and the Facility or Facilities
involved, (ii) the applicable Incremental Facility Closing Date and (iii) in the
case of the Incremental Facility, the Incremental Facility Maturity Date.
Notwithstanding the foregoing, (i) the sum of aggregate principal amount of the
Incremental Facility Commitments, any increase in the 364-Day Commitments and
any increase in the Five-Year Commitments shall not exceed $1,000,000,000, (ii)
no increase pursuant to this paragraph may be obtained after the occurrence and
during the continuation of a Default or Event of Default and (iii) any increase
effected pursuant to this paragraph shall be in a minimum amount of at least
$10,000,000. Any Incremental Facility shall be governed by this Agreement. No
Lender shall have any obligation to participate in any increase described in
this paragraph unless it agrees to do so in its sole discretion.
(e) Any additional bank, financial institution or other entity
which, with the consent of Gannett and the Administrative Agent (which consent
shall not be unreasonably withheld), elects to become a "Lender" under this
Agreement in connection with any transaction described in Section 2.1(d) shall
execute a New Lender Supplement (each, a "New Lender Supplement"), substantially
in the form of Exhibit D-1, whereupon such bank, financial institution or other
entity (a "New Lender") shall become a Lender for all purposes and to the same
extent as if originally a party hereto and shall be bound by and entitled to the
benefits of this Agreement.
Section 2.2 Procedure for Revolving Credit Borrowing. Gannett
may borrow Revolving Credit Loans under the Commitments on any Business Day;
provided that Gannett shall give the Administrative Agent irrevocable notice
(which notice must be received by the Administrative Agent prior to 11:00 A.M.,
Dallas, Texas time, (a) three Business Days prior to the requested Borrowing
Date, if all or any part of the requested Revolving Credit Loans are to be
Eurodollar Loans, or (b) on the requested Borrowing Date, otherwise), specifying
(i) the Facility under which the Borrowing is to be made, (ii) the amount to be
borrowed, (iii) the
15
requested Borrowing Date, (iv) whether the Borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and (v) if the Borrowing is to be
entirely or partly of Eurodollar Loans, the respective amounts of each such Type
of Loan and the respective lengths of the initial Interest Periods therefor. Any
Loans made on the Effective Date shall be ABR Loans. Each Borrowing under the
Commitments shall be in an amount equal to $10,000,000 or a multiple of
$1,000,000 in excess thereof. Upon receipt of any such notice from Gannett, the
Administrative Agent shall promptly notify each relevant Lender thereof. Each
relevant Lender will make the amount of its pro rata share of each Borrowing
available to the Administrative Agent for the account of Gannett at the office
of the Administrative Agent specified in Section 9.2 prior to 1:00 P.M., Dallas,
Texas time, on the Borrowing Date requested by Gannett in funds immediately
available to the Administrative Agent. Such Borrowing will then immediately be
made available to Gannett by the Administrative Agent crediting the account of
Gannett on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
Section 2.3 Competitive Borrowings.
(a) The Competitive Bid Option. In addition to the Revolving
Credit Loans which may be made available pursuant to Section 2.1, Gannett may,
as set forth in this Section 2.3, request the Lenders to make offers to make
Competitive Loans to Gannett. The Lenders may, but shall have no obligation to,
make such offers, and Gannett may, but shall have no obligation to, accept any
such offers in the manner set forth in this Section 2.3.
(b) Competitive Bid Request. When Gannett wishes to request
offers to make Competitive Loans under this Section 2.3, it shall transmit to
the Administrative Agent a Competitive Bid Request to be received no later than
12:00 Noon (Dallas, Texas time) on (x) the fourth Business Day prior to the
Borrowing Date proposed therein, in the case of a Borrowing of Eurodollar
Competitive Loans or (y) the Business Day immediately preceding the Borrowing
Date proposed therein, in the case of a Fixed Rate Borrowing, specifying:
(i) the Facility under which the Borrowing is to be made,
(ii) the proposed Borrowing Date,
(iii) the aggregate principal amount of such Borrowing, which
shall be $10,000,000 or a multiple of $1,000,000 in excess thereof,
(iv) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period
contained in Section 1.1, and
(v) whether the Borrowing then being requested is to be of
Eurodollar Competitive Loans or Fixed Rate Loans.
A Competitive Bid Request that does not conform substantially to the format of
Exhibit C-1 may be rejected by the Administrative Agent in its sole discretion,
and the Administrative Agent shall promptly notify Gannett of such rejection.
Gannett may request offers to make Competitive Loans for more than one Interest
Period in a single Competitive Bid Request. No Competitive
16
Bid Request shall be given within three Business Days of any other Competitive
Bid Request pursuant to which Gannett has made a Competitive Borrowing.
(c) Invitation for Competitive Bids. Promptly after its
receipt of a Competitive Bid Request (but, in any event, no later than 3:00
P.M., Dallas, Texas time, on the date of such receipt) conforming to the
requirements of paragraph (b) above, the Administrative Agent shall send to each
of the relevant Lenders an Invitation for Competitive Bids which shall
constitute an invitation by Gannett to each such Lender to bid, on the terms and
conditions of this Agreement, to make Competitive Loans pursuant to the
Competitive Bid Request.
(d) Submission and Contents of Competitive Bids. (i) Each
Lender to which an Invitation for Competitive Bids is sent may submit a
Competitive Bid containing an offer or offers to make Competitive Loans in
response to such Invitation for Competitive Bids. Each Competitive Bid must
comply with the requirements of this paragraph (d) and must be submitted to the
Administrative Agent at its offices specified in Section 9.2 not later than (x)
9:30 A.M. (Dallas, Texas time) on the third Business Day prior to the proposed
Borrowing Date, in the case of a Borrowing of Eurodollar Competitive Loans or
(y) 9:30 A.M. (Dallas, Texas time) on the date of the proposed Borrowing, in the
case of a Fixed Rate Borrowing; provided that any Competitive Bids submitted by
the Administrative Agent in the capacity of a Lender may only be submitted if
the Administrative Agent notifies Gannett of the terms of the offer or offers
contained therein not later than fifteen minutes prior to the deadline for the
other Lenders. A Competitive Bid submitted by a Lender pursuant to this
paragraph (d) shall be irrevocable.
(ii) Each Competitive Bid shall be in substantially the form
of Exhibit C-3 and shall specify:
(A) the date of the proposed Borrowing and the Facility under
which it is to be made,
(B) the principal amount of the Competitive Loan for which
each such offer is being made, which principal amount (w) may be
greater than, equal to or less than the Commitment of the quoting
Lender, (x) must be in a minimum principal amount of $5,000,000 or a
multiple of $1,000,000 in excess thereof, (y) may not exceed the
principal amount of Competitive Loans for which offers were requested
and (z) may be subject to a limitation as to the maximum aggregate
principal amount of Competitive Loans for which offers being made by
such quoting Lender may be accepted,
(C) in the case of a Borrowing of Eurodollar Competitive
Loans, the Margin offered for each such Competitive Loan, expressed as
a percentage (specified in increments of 1/10,000th of 1%) to be added
to or subtracted from such base rate,
(D) in the case of a Fixed Rate Borrowing, the rate of
interest per annum (specified in increments of 1/10,000th of 1%)
offered for each such Competitive Loan, and
(E) the identity of the quoting Lender.
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A Competitive Bid may set forth up to five separate offers by the quoting Lender
with respect to each Interest Period specified in the related Invitation for
Competitive Bids. Any Competitive Bid shall be disregarded by the Administrative
Agent if the Administrative Agent determines that it: (A) is not substantially
in the form of Exhibit C-3 or does not specify all of the information required
by Section 2.3(d)(ii); (B) contains qualifying, conditional or similar language
(except for a limitation on the maximum principal amount which may be accepted);
(C) proposes terms other than or in addition to those set forth in the
applicable Invitation for Competitive Bids or (D) arrives after the time set
forth in Section 2.3(d)(i).
(e) Notice to Gannett. The Administrative Agent shall promptly
(and, in any event, by 10:00 A.M., Dallas, Texas time) notify Gannett, by
telecopy, of all the Competitive Bids made (including all disregarded bids), the
Competitive Bid Rate and the principal amount of each Competitive Loan in
respect of which a Competitive Bid was made and the identity of the Lender that
made each bid. The Administrative Agent shall send a copy of all Competitive
Bids (including all disregarded bids) to Gannett for its records as soon as
practicable after completion of the bidding process set forth in this Section
2.3.
(f) Acceptance and Notice by Gannett. Gannett may in its sole
discretion, subject only to the provisions of this paragraph (f), accept or
reject any Competitive Bid (other than any disregarded bid) referred to in
paragraph (e) above. Gannett shall notify the Administrative Agent by telephone,
confirmed immediately thereafter by telecopy in the form of a Competitive Bid
Accept/Reject Letter, whether and to what extent it wishes to accept any or all
of the bids referred to in paragraph (e) above not later than (x) 11:00 A.M.
(Dallas, Texas time) on the third Business Day prior to the proposed Borrowing
Date, in the case of a Competitive Eurodollar Borrowing or (y) 11:00 A.M.
(Dallas, Texas time) on the proposed Borrowing Date, in the case of a Fixed Rate
Borrowing; provided that:
(i) the failure by Gannett to give such notice shall be deemed
to be a rejection of all the bids referred to in paragraph (e) above,
(ii) if made under the 364-Day Facility, the aggregate
principal amount of the Competitive Bids accepted by Gannett may not
exceed the lesser of (A) the principal amount set forth in the related
Competitive Bid Request and (B) the excess, if any, of the aggregate
364-Day Commitments of all 364-Day Lenders then in effect over the
aggregate principal amount of all 364-Day Loans outstanding immediately
prior to the making of such Competitive Loans,
(iii) if made under the Five-Year Facility, the aggregate
principal amount of the Competitive Bids accepted by Gannett may not
exceed the lesser of (A) the principal amount set forth in the related
Competitive Bid Request and (B) the excess, if any, of the aggregate
Five-Year Commitments of all Five-Year Lenders then in effect over the
aggregate principal amount of all Five-Year Loans outstanding
immediately prior to the making of such Competitive Loans,
(iv) the principal amount of each Competitive Borrowing must
be $5,000,000 or a multiple of $1,000,000 in excess thereof, and
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(v) Gannett may not accept any Competitive Bid that is
disregarded by the Administrative Agent pursuant to Section 2.3(d)(ii)
or that otherwise fails to comply with the requirements of this
Agreement.
A notice given by Gannett pursuant to this paragraph (f) shall be irrevocable.
(g) Allocation by Administrative Agent. If offers are made by
two or more Lenders with the same Competitive Bid Rates for a greater aggregate
principal amount than the amount in respect of which such offers are accepted
for the related Interest Period, the principal amount of Competitive Loans in
respect of which such offers are accepted shall be allocated by the
Administrative Agent among such Lenders as nearly as possible (in integral
multiples of $1,000,000, as the Administrative Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers.
(h) Notification of Acceptance. The Administrative Agent shall
promptly (and, in any event, by 11:30 A.M., Dallas, Texas time) notify each
bidding Lender whether or not its Competitive Bid has been accepted (and if so,
in what amount and at what Competitive Bid Rate), and each successful bidder
will thereupon become bound, subject to the other applicable conditions hereof,
to make the Competitive Loan in respect of which its bid has been accepted.
Section 2.4 Termination or Reduction of Commitments. Gannett
shall have the right, upon not less than two Business Days' notice to the
Administrative Agent, to terminate the 364-Day Commitments when no 364-Day Loans
are then outstanding or, from time to time, to reduce the unutilized portion of
the 364-Day Commitments. Gannett shall have the right, upon not less than two
Business Days' notice to the Administrative Agent, to terminate the Five-Year
Commitments when no Five-Year Loans are then outstanding or, from time to time,
to reduce the unutilized portion of the Five-Year Commitments. Any such
reduction pursuant to this Section 2.4 shall be in an amount equal to
$10,000,000 or a multiple of $1,000,000 in excess thereof and shall reduce
permanently the applicable Commitments then in effect, and the fees payable
pursuant to Section 2.10 shall then reflect the reduced Commitments.
Section 2.5 Optional Prepayments. Gannett may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the Administrative Agent at least
three Business Days prior thereto in the case of Eurodollar Loans and at least
one Business Day prior thereto in the case of ABR Loans, which notice shall
specify the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is prepaid on
any day other than the last day of the Interest Period applicable thereto,
Gannett shall also pay any amounts owing pursuant to Section 2.16. Upon receipt
of any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein, together with accrued
interest and fees to such date on the amount prepaid. Partial prepayments shall
be in an aggregate principal amount of $10,000,000 or a multiple of $1,000,000
in excess thereof. Notwithstanding anything to the contrary contained herein,
Gannett shall not prepay the Competitive Loans except pursuant to Article 7,
with the consent of the Lender which has made such Competitive Loan or as
provided in the related Competitive Bid Request.
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Section 2.6 Conversion and Continuation Options. (a) Gannett
may elect from time to time to convert Eurodollar Revolving Credit Loans to ABR
Loans by giving the Administrative Agent at least one Business Day's prior
irrevocable notice of such election; provided that any such conversion of
Eurodollar Revolving Credit Loans may only be made on the last day of an
Interest Period with respect thereto. Gannett may elect from time to time to
convert ABR Loans to Eurodollar Revolving Credit Loans by giving the
Administrative Agent at least three Business Days' prior irrevocable notice of
such election. Any such notice of conversion to Eurodollar Revolving Credit
Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof. All or any part of outstanding
Eurodollar Revolving Credit Loans and ABR Loans may be converted as provided
herein; provided that (i) no Loan may be converted into a Eurodollar Revolving
Credit Loan when any Event of Default has occurred and is continuing, (ii) no
364-Day Loan may be converted into a Eurodollar Revolving Credit Loan after the
date that is one month prior to the 364-Day Termination Date and (iii) no
Five-Year Loan may be converted into a Eurodollar Revolving Credit Loan after
the date that is one month prior to the Five-Year Termination Date.
(b) Any Eurodollar Revolving Credit Loans may be continued as
such upon the expiration of the then current Interest Period with respect
thereto by Gannett giving notice to the Administrative Agent, in accordance with
the applicable provisions of the term "Interest Period" set forth in Section
1.1, of the length of the next Interest Period to be applicable to such Loans;
provided that no Eurodollar Revolving Credit Loan may be continued as such (i)
when any Event of Default has occurred and is continuing or (ii) after the date
that is one month prior to the 364-Day Termination Date or the Five-Year
Termination Date, as applicable; and provided, further, that if Gannett shall
fail to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Eurodollar
Revolving Credit Loans shall be automatically converted to ABR Loans on the last
day of such then expiring Interest Period.
Section 2.7 Minimum Amounts of Eurodollar Borrowings. All
borrowings, conversions and continuations of Revolving Credit Loans hereunder
and all selections of Interest Periods hereunder shall be in such amounts and be
made pursuant to such elections so that, after giving effect thereto, the
aggregate principal amount of the Revolving Credit Loans comprising each
Eurodollar Borrowing shall be equal to $10,000,000 or a multiple of $1,000,000
in excess thereof and so that there shall not be more than 20 Eurodollar
Borrowings outstanding at any one time.
Section 2.8 Repayment of Loans; Evidence of Debt. (a) Gannett
hereby unconditionally promises to pay (i) to each 364-Day Lender on the 364-Day
Termination Date (or such earlier date as the 364-Day Loans become due and
payable pursuant to Article 7 or Section 2.5), the unpaid principal amount of
each 364-Day Loan made by such 364-Day Lender, (ii) to each Five-Year Lender on
the Five-Year Termination Date (or such earlier date as the Five-Year Loans
become due and payable pursuant to Article 7 or Section 2.5), the unpaid
principal amount of each Five-Year Loan made by such Five-Year Lender and (iii)
to each applicable Lender on the last day of the applicable Interest Period, the
unpaid principal amount of each Competitive Loan made by any such Lender.
Gannett hereby further agrees to pay interest in immediately available funds at
the office of the Administrative Agent on the unpaid
20
principal amount of the Loans from time to time from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth in
Section 2.9.
(b) Notwithstanding anything to the contrary contained herein,
so long as Gannett gives the Administrative Agent at least 30 days' notice in
advance of the 364-Day Termination Date, Gannett may elect that all or any
portion of the 364-Day Loan outstanding on the 364-Day Termination Date shall
become a term loan and be due and payable in full on the date (the "Extended
Date"; the 364-Day Loans so extended, the "Extended Loans") which is one year
following the 364-Day Termination Date (or such earlier date as the 364-Day
Loans become due and payable pursuant to Article 7 or Section 2.5).
(c) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of Gannett to the
appropriate lending office of such Lender resulting from each Loan made by such
lending office of such Lender from time to time, including the amounts of
principal and interest payable and paid to such lending office of such Lender
from time to time under this Agreement.
(d) The Administrative Agent shall maintain the Register
pursuant to Section 9.6(d), and a subaccount for each Lender, in which Register
and subaccounts (taken together) shall be recorded (i) the amount of each Loan
made hereunder, the Type of each Loan made and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from Gannett to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder from Gannett
and each Lender's share thereof.
(e) The entries made in the Register and accounts maintained
pursuant to paragraphs (c) and (d) of this Section 2.8 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of Gannett therein recorded; provided, however, that
the failure of any Lender or the Administrative Agent to maintain such account,
such Register or such subaccount, as applicable, or any error therein, shall not
in any manner affect the obligation of Gannett to repay (with applicable
interest) the Loans made to Gannett by such Lender in accordance with the terms
of this Agreement.
Section 2.9 Interest Rates and Payment Dates. (a) Each ABR
Loan shall bear interest at a rate per annum equal to the ABR plus the
Applicable Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to (i) in the case of each Eurodollar
Revolving Credit Loan, the Eurodollar Rate for the Interest Period in effect for
such Borrowing plus the Applicable Margin and (ii) in the case of each
Eurodollar Competitive Loan, the Eurodollar Rate for the Interest Period in
effect for such Borrowing plus (or minus, as the case may be) the Margin offered
by the Lender making such Loan and accepted by Gannett pursuant to Section 2.3.
The Applicable Margin applicable to Extended Loans shall be increased by .2000%.
(c) Each Fixed Rate Loan shall bear interest at a rate per
annum equal to the fixed rate of interest offered by the Lender making such Loan
and accepted by Gannett pursuant to Section 2.3.
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(d) Interest shall be payable in arrears on each Interest
Payment Date; provided that interest accruing pursuant to paragraph (e) of this
Section 2.9 shall be payable from time to time on demand.
(e) (i) If all or a portion of the principal amount of any
Loan shall not be paid when due (whether at the stated maturity, by acceleration
or otherwise), such overdue amount shall bear interest at a rate per annum equal
to the rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section 2.9 plus 1% and (ii) to the extent permitted under
applicable law, if all or a portion of any interest payable on any Loan or any
fee or other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate then applicable to ABR Loans plus
1%, in each case, with respect to clauses (i) and (ii) above, from the date of
such non-payment until such amount is paid in full (as well after as before
judgment).
Section 2.10 Fees. (a) Gannett shall pay to the Administrative
Agent, for the ratable account of the 364-Day Lenders, a facility fee (the
"364-Day Facility Fee") at the rate per annum equal to (i) for each day that
Gannett has Credit Status 1, .0500% of the aggregate 364-Day Commitments on such
day, (ii) for each day that Gannett has Credit Status 2, .0600% of the aggregate
364-Day Commitments on such day, (iii) for each day that Gannett has Credit
Status 3, .0800% of the aggregate 364-Day Commitments on such day, (iv) for each
day that Gannett has Credit Status 4, .1000% of the aggregate 364-Day
Commitments on such day, (v) for each day that Gannett has Credit Status 5,
..1500% of the aggregate 364-Day Commitments on such day and (vi) for each day
that Gannett has Credit Status 6, .2000% of the aggregate 364-Day Commitments on
such day. On the first Business Day following the last day of each fiscal
quarter of Gannett and on the 364-Day Termination Date or the Extended Date, as
applicable, (or, if earlier, on the date upon which both the 364-Day Commitments
are terminated and the 364-Day Loans are paid in full), Gannett shall pay to the
Administrative Agent, for the ratable benefit of the Lenders, the portion of the
364-Day Facility Fee which accrued during the fiscal quarter most recently ended
(or, in the case of the payment due on the 364-Day Termination Date or the
Extended Date, the portion thereof ending on such date). Such facility fee shall
be based upon the aggregate 364-Day Commitments of the 364-Day Lenders from time
to time, regardless of the utilization by Gannett from time to time thereunder.
During any period following the 364-Day Termination Date when 364-Day Loans are
outstanding, the 364-Day Facility Fee shall be payable on the aggregate
principal amount of such 364-Day Loans.
(b) Gannett shall pay to the Administrative Agent, for the
ratable account of the Five-Year Lenders, a facility fee (the "Five-Year
Facility Fee") at the rate per annum equal to (i) for each day that Gannett has
Credit Status 1, .0700% of the aggregate Five-Year Commitments on such day, (ii)
for each day that Gannett has Credit Status 2, .0800% of the aggregate Five-Year
Commitments on such day, (iii) for each day that Gannett has Credit Status 3,
..1000% of the aggregate Five-Year Commitments on such day, (iv) for each day
that Gannett has Credit Status 4, .12500% of the aggregate Five-Year Commitments
on such day, (v) for each day that Gannett has Credit Status 5, .1750% of the
aggregate Five-Year Commitments on such day and (vi) for each day that Gannett
has Credit Status 6, .2500% of the aggregate Five-Year Commitments on such day.
On the first Business Day following the last day of each fiscal quarter of
Gannett and on the Five-Year Termination Date (or, if earlier, on the date upon
which
22
both the Five-Year Commitments are terminated and the Five-Year Loans are paid
in full), Gannett shall pay to the Administrative Agent, for the ratable benefit
of the Lenders, the portion of the Five-Year Facility Fee which accrued during
the fiscal quarter most recently ended (or, in the case of the payment due on
the Five-Year Termination Date, the portion thereof ending on such date). Such
facility fee shall be based upon the aggregate Five-Year Commitments of the
Five-Year Lenders from time to time, regardless of the utilization by Gannett
from time to time thereunder.
(c) Gannett shall pay to the Administrative Agent, for the
ratable account of the Lenders, a utilization fee (the "Utilization Fee") at a
rate per annum equal to 0.0750% for each day on which the Commitment Utilization
Percentage exceeds 50%, which Utilization Fee shall accrue on the average daily
amount of the Total Extensions of Credit for each Excess Utilization Day during
the term of this Agreement. All Utilization Fees shall be computed on the basis
of the actual number of days elapsed in a year of 360 days and shall be payable
quarterly in arrears.
Section 2.11 Computation of Interest and Fees. (a) Interest
payable pursuant hereto shall be calculated on the basis of a 360-day year for
the actual days elapsed, except that, with respect to ABR Loans and Competitive
Loans the rate of interest on which is calculated on the basis of the Prime
Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed. Fees (other than the
Utilization Fees, which shall be calculated as provided in Section 2.10(c))
payable pursuant hereto shall be calculated on the basis of a 365- (or 366-, as
the case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify Gannett and the relevant Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the ABR or the Eurocurrency Reserve Requirements
shall become effective as of the opening of business on the day on which such
change becomes effective. The Administrative Agent shall as soon as practicable
notify Gannett and the relevant Lenders of the effective date and the amount of
each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on Gannett and the Lenders in the absence of manifest
error. The Administrative Agent shall, at the request of Gannett, deliver to
Gannett a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.11(a).
Section 2.12 Inability to Determine Interest Rate. If prior to
the first day of any Interest Period the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon Gannett)
that, by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, the Administrative Agent shall give telecopy or telephonic
notice thereof to Gannett and the relevant Lenders as soon as practicable
thereafter. If such notice is given (x) any Eurodollar Loans under the relevant
Facility requested to be made on the first day of such Interest Period shall be
made as ABR Loans, (y) any Loans under the relevant Facility that were to have
been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans under
the relevant Facility shall be converted, on the last day of the then-current
Interest Period, to ABR Loans. Until such
23
notice has been withdrawn by the Administrative Agent, no further Eurodollar
Loans under the relevant Facility shall be made or continued as such, nor shall
Gannett have the right to convert Loans under the relevant Facility to
Eurodollar Loans.
Section 2.13 Pro Rata Treatment and Payments. (a) Each
borrowing of Revolving Credit Loans from the Lenders hereunder, each payment by
Gannett on account of any fee hereunder and, subject to the last sentence of
Section 2.4, any reduction of the Commitments of the Lenders shall be made pro
rata according to the respective 364-Day Commitments or Five-Year Commitments,
as the case may be, of the relevant Lenders. Subject to the last sentence of
Section 2.4, each payment (including each prepayment) by Gannett on account of
principal of and interest on the 364-Day Loans shall be made pro rata according
to the respective outstanding principal amounts of the 364-Day Loans then held
by the Lenders, and each payment (including each prepayment) by Gannett on
account of principal of and interest on the Five-Year Loans shall be made pro
rata according to the respective outstanding principal amounts of the Five-Year
Loans then held by the Lenders. Each payment by Gannett on account of principal
of and interest on any Borrowing of Competitive Loans shall be made pro rata
among the Lenders participating in such Borrowing according to the respective
principal amounts of their outstanding Competitive Loans comprising such
Borrowing.
(b) All payments (including prepayments) to be made by Gannett
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without set-off or counterclaim and shall be made prior to 12:00 Noon,
Dallas, Texas time, on the due date thereof to the Administrative Agent, for the
account of the relevant Lenders, at the Agent's office specified in Section 9.2,
in Dollars and in immediately available funds. Notwithstanding the foregoing,
the failure by Gannett to make a payment (or prepayment) prior to 12:00 Noon on
the due date thereof shall not constitute a Default or Event of Default if such
payment is made on such due date; provided, however, that any payment (or
prepayment) made after such time on such due date shall be deemed made on the
next Business Day for the purposes of interest and reimbursement calculations.
The Administrative Agent shall distribute such payments to the relevant Lenders
promptly upon receipt in like funds as received. If any payment hereunder (other
than payments on the Eurodollar Loans) becomes due and payable on a day other
than a Business Day, such payment shall be extended to the next succeeding
Business Day. If any payment on a Eurodollar Loan becomes due and payable on a
day other than a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day unless the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day. In the case of any
extension of any payment of principal pursuant to the preceding two sentences,
interest thereon shall be payable at the then applicable rate during such
extension.
(c) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to Gannett a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal
24
Funds Effective Rate for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this paragraph shall be conclusive in the absence of manifest error. If
such Lender's share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the Administrative Agent shall also be entitled to recover such amount
with interest thereon at the rate per annum applicable to ABR Loans under the
relevant Facility, on demand, from Gannett. Nothing herein shall be deemed to
limit the rights of Gannett against any Lender who fails to make its share of
such borrowing available.
(d) Unless the Administrative Agent shall have been notified
in writing by Gannett prior to the date of any payment being made hereunder that
Gannett will not make such payment to the Administrative Agent, the
Administrative Agent may assume that Gannett is making such payment, and the
Administrative Agent may, but shall not be required to, in reliance upon such
assumption, make available to the Lenders their respective pro rata shares of a
corresponding amount. If such payment is not made to the Administrative Agent by
Gannett within three Business Days of such required date, the Administrative
Agent shall be entitled to recover, on demand, from each Lender to which any
amount which was made available pursuant to the preceding sentence, such amount
with interest thereon at the rate per annum equal to the daily average Federal
Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the
Administrative Agent or any Lender against Gannett.
Section 2.14 Requirements of Law. (a) If the adoption of or
any change in any Requirement of Law or in the interpretation or application
thereof or compliance by any Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement or any Eurodollar Loan made by
it, or change the basis of taxation of payments to such Lender
in respect thereof (except for Non-Excluded Taxes covered by
Section 2.15 and changes in the rate of tax on the overall net
income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or
for the account of, advances, loans or other extensions of
credit by, or any other acquisition of funds by, any office of
such Lender that is not otherwise included in the
determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition
affecting Eurodollar Loans;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, Gannett shall promptly pay
such Lender, upon its demand, any additional amounts necessary to compensate
such Lender for such increased cost or reduced amount receivable. If
25
any Lender becomes entitled to claim any additional amounts pursuant to this
paragraph, it shall promptly notify Gannett (with a copy to the Administrative
Agent) of the event by reason of which it has become so entitled. Gannett shall
not be liable in respect of any such increased costs to, or reduced amount of
any sum received or receivable by, any Lender pursuant to this Section 2.14(a)
with respect to any interest, fees or other amounts accrued by such Lender more
than 15 days prior to the date notice thereof is given to Gannett pursuant to
this Section 2.14(a).
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, within 15 days after submission by such
Lender to Gannett (with a copy to the Administrative Agent) of a written request
therefor, Gannett shall pay to such Lender such additional amount or amounts as
will compensate such Lender for such reduction; provided that Gannett shall not
be required to compensate a Lender pursuant to this paragraph for any amounts
incurred more than 30 days prior to the date that such Lender notifies Gannett
of such Lender's intention to claim compensation therefor; and provided further
that, if the circumstances giving rise to such claim have a retroactive effect,
then such 30 day period shall be extended to include the period of such
retroactive effect.
(c) A certificate, setting forth a reasonably detailed
explanation as to the reason for any additional amounts payable pursuant to this
Section 2.14, submitted by any Lender to Gannett (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
obligations of Gannett pursuant to this Section shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
Section 2.15 Taxes. (a) All payments made by Gannett under
this Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement). If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") or Other Taxes are required to be withheld from any
amounts payable to the Administrative Agent or any Lender hereunder, the amounts
so payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-
26
Excluded Taxes and Other Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that Gannett shall not be required to increase any such amounts payable
to any Lender with respect to any Non-Excluded Taxes (i) that are attributable
to such Lender's failure to comply with the requirements of paragraph (d) or (e)
of this Section or (ii) that are United States withholding taxes imposed on
amounts payable to such Lender at the time the Lender becomes a party to this
Agreement (or designates a new lending office), except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from Gannett with respect to such Non-Excluded Taxes pursuant
to this paragraph.
(b) In addition, Gannett shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable
by Gannett, as promptly as possible thereafter Gannett shall send to the
Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by Gannett showing payment thereof. If Gannett fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority
or fails to remit to the Administrative Agent the required receipts or other
required documentary evidence, Gannett shall indemnify the Administrative Agent
and the Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure.
(d) Each Lender (or Transferee) that is not a "U.S. Person" as
defined in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver
to Gannett and the Administrative Agent (or, in the case of a Participant, to
the Lender from which the related participation shall have been purchased) two
copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or,
in the case of a Non-U.S. Lender 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", a statement substantially in the form of
Exhibit E and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by Gannett under this Agreement. Such forms shall be delivered by
each Non-U.S. Lender on or before the date it becomes a party to this Agreement
or designates a new lending office (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify Gannett at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to Gannett (or any other form of certification adopted by
the U.S. taxing authorities for such purpose). Notwithstanding any other
provision of this paragraph, a Non-U.S. Lender shall not be required to deliver
any form pursuant to this paragraph that such Non-U.S. Lender is not legally
able to deliver.
(e) If the Administrative Agent or any Lender receives a
refund in respect of any amounts paid by Gannett pursuant to this Section 2.15,
which refund in the reasonable judgment of such Administrative Agent or such
Lender is allocable to such payment, it shall pay
27
the amount of such refund to Gannett, net of all reasonable out-of-pocket
expenses of the Administrative Agent or such Lender, provided however, that
Gannett, upon the request of such Lender or the Administrative Agent, agrees to
repay the amount paid over to Gannett to the Administrative Agent or such Lender
in the event such Administrative Agent or the Lender is required to repay such
refund. Nothing contained herein shall interfere with the right of the
Administrative Agent or any Lender to arrange its tax affairs in whatever manner
it deems fit nor oblige the Administrative Agent or any Lender to apply for any
refund or to disclose any information relating to its affairs or any
computations in respect thereof.
(f) The agreements in this Section 2.15 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
Section 2.16 Indemnity. Gannett agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense that such
Lender sustains or incurs as a consequence of (a) default by Gannett in making a
borrowing of, conversion into or continuation of Eurodollar Loans after Gannett
has given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by Gannett in making any prepayment of or conversion from
Eurodollar Loans after Gannett has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day that is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if any,
of (i) the amount of interest that would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) that
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. A certificate as to any amounts payable pursuant to this Section
submitted to Gannett by any Lender shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
Section 2.17 Change of Lending Office. Each Lender agrees
that, upon the occurrence of any event giving rise to the operation of Section
2.14 or 2.15(a) with respect to such Lender, it will, if requested by Gannett,
use reasonable efforts (subject to overall policy considerations of such Lender)
to designate another lending office for any Loans affected by such event with
the object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of Gannett or the rights of any Lender
pursuant to Section 2.14 or 2.15(a).
Section 2.18 Replacement of Lenders. Gannett shall be
permitted to replace any Lender that (a) requests reimbursement for amounts
owing pursuant to Section 2.14 or 2.15(a) or (b) defaults in its obligation to
make Loans hereunder, with a replacement financial institution; provided that
(i) such replacement does not conflict with any Requirement of Law, (ii) prior
to
28
any such replacement, such Lender shall have taken no action under Section 2.17
so as to eliminate the continued need for payment of amounts owing pursuant to
Section 2.14 or 2.15(a), (iii) the replacement financial institution shall
purchase, at par, all Loans and other amounts owing to such replaced Lender on
or prior to the date of replacement, (iv) Gannett shall be liable to such
replaced Lender under Section 2.16 if any Eurodollar Loan owing to such replaced
Lender shall be purchased other than on the last day of the Interest Period
relating thereto, (v) the replacement financial institution, if not already a
Lender, shall be reasonably satisfactory to the Administrative Agent, (vi) the
replaced Lender shall be obligated to make such replacement in accordance with
the provisions of Section 9.6 (provided that Gannett shall be obligated to pay
the registration and processing fee referred to therein), (vii) until such time
as such replacement shall be consummated, Gannett shall pay all additional
amounts (if any) required pursuant to Section 2.14 or 2.15(a), as the case may
be, and (viii) any such replacement shall not be deemed to be a waiver of any
rights that Gannett, the Administrative Agent or any other Lender shall have
against the replaced Lender.
ARTICLE III
Representations and Warranties
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans, Gannett hereby represents and
warrants to the Administrative Agent and each Lender that:
Section 3.1 Organization; Powers. Gannett and each of its
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation. Except where the
failure to do so, individually or in the aggregate, would result in a Material
Adverse Effect, Gannett and each of its Subsidiaries is duly qualified to do
business as a foreign corporation and is in good standing in all states in which
it owns substantial properties or in which it conducts a substantial business
and its activities make such qualifications necessary.
Section 3.2 Financial Condition; No Material Adverse Effect.
On or as of the Effective Date, Gannett has furnished to each of the Lenders
copies of either its Annual Report for 2001 or a report on Form 8-K, containing
in either case, copies of its consolidated balance sheet as of December 30, 2001
and the related statements of consolidated income and changes in shareholders'
equity and cash flows for 2001, all reported on by PricewaterhouseCoopers LLP,
independent public accountants. The financial statements contained in such
Annual Report or report on Form 8-K (including the related notes) fairly present
Gannett's consolidated financial condition as of their respective dates and the
consolidated results of the operations of Gannett and its Subsidiaries for the
periods then ended, and have been prepared in accordance with GAAP. Gannett and
its Subsidiaries have no Material liabilities as of December 30, 2001 not
reflected in the consolidated balance sheet as of December 30, 2001 or the
related notes as of said date, and from that date to the Effective Date there
has been no Material change in the business or financial condition of Gannett
and its Subsidiaries taken as a whole which has not been publicly disclosed.
29
Section 3.3 Properties. As of the Effective Date, Gannett and
its Subsidiaries owned absolutely, free and clear of all Liens, all of the real
or personal property reflected in the consolidated balance sheet dated as of
December 30, 2001 referred to in Section 3.2 and all other property acquired by
them, respectively after December 30, 2001 except such property as has been
disposed of in the ordinary course of business, and except for (i) easements,
restrictions, exceptions, reservations or defects which, in the aggregate, do
not materially interfere with the continued use of such property or materially
affect the value thereof to Gannett or its Subsidiaries, (ii) Liens, if any, for
current taxes not delinquent, and (iii) Liens reflected on such consolidated
balance sheet or not otherwise prohibited by Section 6.1. As of the Effective
Date, Gannett and its Subsidiaries enjoy peaceful and undisturbed possession of
their properties which are held under lease and all such leases are in good
standing and valid and binding obligations of the lessors in full force and
effect, except for exceptions, reservations or defects which in the aggregate do
not materially interfere with the continued use of such property or materially
affect the value thereof to Gannett or its Subsidiaries.
Section 3.4 Litigation. There are no actions, suits, or
proceedings pending or, to Gannett's knowledge, threatened against or affecting
it or any Subsidiary in or before any court or foreign or domestic governmental
instrumentality, and neither Gannett nor any Subsidiary is in default in respect
of any order of any such court or instrumentality which, in Gannett's opinion,
are Material.
Section 3.5 No Conflicts. Neither the execution and delivery
of this Agreement, the consummation of the transactions herein contemplated, nor
compliance with the terms and provisions hereof will conflict with or result in
a breach of any of the provisions of Gannett's restated certificate of
incorporation, as amended, or by-laws, as amended, or any law or regulation, or
any order of any court or governmental instrumentality, or any agreement or
instrument by which Gannett is bound, or constitute a default thereunder, or
result in the imposition of any Lien not permitted under this Agreement upon any
of Gannett's property.
Section 3.6 Taxes. To the best of Gannett's knowledge, Gannett
and its Subsidiaries have filed all tax returns which are required to be filed
by any jurisdiction, and have paid all taxes which have become due pursuant to
said returns or pursuant to any assessments against it or its Subsidiaries,
except to the extent only that such taxes are not material or are being
contested in good faith by appropriate proceedings.
Section 3.7 Authorization; Enforceability. The execution and
delivery of this Agreement and the making of all Borrowings permitted by the
provisions hereof have been duly authorized by all necessary corporate action on
the part of Gannett; this Agreement has been duly and validly executed and
delivered by Gannett and constitutes Gannett's valid and legally binding
agreement enforceable in accordance with its terms; and the Borrowings when
made, will constitute valid and binding obligations of Gannett enforceable in
accordance with the terms of this Agreement, except as limited by applicable
bankruptcy, insolvency, moratorium, reorganization or other laws, judicial
decisions or principles of equity relating to or affecting the enforcement of
creditors rights or contractual obligations generally.
Section 3.8 Environmental Matters. In the ordinary course of
its business, Gannett becomes aware from time to time of the effect of
Environmental Laws on its business,
30
operations and properties and the business, operations and properties of its
Subsidiaries, and it identifies and evaluates associated liabilities and costs
(including, without limitation, any capital or operating expenditures required
for clean-up or closure of properties then owned or operated by Gannett or its
Subsidiaries, any capital or operating expenditures required to achieve or
maintain compliance with environmental protection standards imposed by law or as
a condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted at such properties, and any actual or potential liabilities to third
parties, including employees, and any related costs and expenses). On the basis
of these evaluations, Gannett has reasonably concluded that Environmental Laws
are unlikely to have a Material Adverse Effect.
Section 3.9 No Change. Since December 30, 2001, there has been
no development or event that has had or would have a Material Adverse Effect.
Section 3.10 Federal Regulations. No part of the proceeds of
any Loans, and no other extensions of credit hereunder, will be used for
"buying" or "carrying" any "margin stock" within the respective meanings of each
of the quoted terms under Regulation U as now and from time to time hereafter in
effect or for any purpose that violates the provisions of the Regulations of the
Board. If requested by any Lender or the Administrative Agent, Gannett will
furnish to the Administrative Agent and each Lender a statement to the foregoing
effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as
applicable, referred to in Regulation U.
Section 3.11 No Default. Neither Gannett nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect that would have a Material Adverse Effect.
Section 3.12 Investment Company Act; Federal Regulations.
Gannet is not an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
ARTICLE IV
Conditions
The obligation of each Lender to make a Loan hereunder is
subject to the accuracy, as of the date hereof, of the representations and
warranties herein contained and to the satisfaction of the following further
conditions:
(a) The Administrative Agent shall have received (i) this
Agreement, executed and delivered by the Agents and Gannett and (ii) an
Addendum, executed and delivered by each Lender listed on Schedule 1.1.
(b) On the date of each Borrowing (i) no Default or Event of
Default shall have occurred and be continuing and (ii) the representations and
warranties contained in Sections 3.1, 3.5 and 3.7 shall be true and correct in
all material respects on and as of such date as if made on and as of such date.
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(c) On or prior to the date of the first Borrowing hereunder,
there shall have been delivered to each Lender an opinion from ▇▇▇▇▇ ▇▇▇▇▇▇▇
LLP, counsel to Gannett, in substantially the form of Exhibit F hereto. In
rendering the foregoing opinion, such counsel may rely upon certificates of
officers of Gannett and its Subsidiaries as to factual matters, including (i)
the nature and location of the property of Gannett and of its Subsidiaries, (ii)
agreements and instruments to which Gannett and/or its Subsidiaries are a party,
and (iii) the conduct of the business of Gannett and its Subsidiaries.
(d) On or prior to the date of the first Borrowing hereunder,
there shall have been delivered to each Lender a certificate of the Secretary of
Gannett certifying, as of the date of the Agreement, to resolutions duly adopted
by the Board of Directors of Gannett or a duly authorized committee thereof
authorizing Gannett's execution and delivery of this Agreement and the making of
the Borrowings.
(e) Prior to or simultaneously with the Effective Date, the
Borrower shall have (i) terminated the "364-Day Facility" under and as defined
in its Competitive Advance and Revolving Credit Agreement, dated as of July 28,
2000, as amended, and paid in full all amounts (including, without limitation,
interest and fees), if any, owing thereunder and (ii) terminated the commitments
under its Revolving Credit Agreement, dated as of December 1, 1993, as amended,
and paid in full all amounts (including, without limitation, interest and fees),
if any, owing thereunder.
ARTICLE V
Affirmative Covenants.
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, Gannett covenants and agrees with the Lenders that it shall
and shall cause each of its Subsidiaries to:
Section 5.1 Financial Statements and Other Information.
Furnish to the Administrative Agent and the Lenders:
(a) within 60 days after the end of each of the first three
quarterly periods in each fiscal year, its consolidated statements of
income for such quarterly period and for the period from the beginning
of the fiscal year to the end of such quarterly period and its
consolidated balance sheet at the end of that period, all in reasonable
detail, subject, however, to year-end audit adjustments, together with
a certificate of compliance and no default in substantially the form of
Exhibit G hereto certified by an appropriate financial officer of
Gannett;
(b) within 120 days after and as of the close of each fiscal
year, Gannett's Annual Report to shareholders for such fiscal year,
containing copies of its consolidated income statement, consolidated
balance sheet and changes in shareholders' equity and cash flows for
such fiscal year accompanied by a report by PricewaterhouseCoopers LLP
or some other accounting firm of national reputation selected by
Gannett, based on their examination of such financial statements, which
examination shall have been conducted
32
in accordance with generally accepted auditing standards and which
report shall indicate that the financial statements have been prepared
in accordance with GAAP, together with a certificate of compliance and
no default in substantially the form of Exhibit G hereto, certified by
an appropriate financial officer of Gannett;
(c) promptly upon their becoming available, copies of all
regular and periodic financial reports, if any, which Gannett or any of
its Subsidiaries shall file with the Securities and Exchange Commission
or with any securities exchange;
(d) promptly upon their becoming available, copies of all
prospectuses of Gannett and all reports, proxy statements and financial
statements mailed by Gannett to its shareholders generally; and
(e) such other information respecting the financial condition
and affairs of Gannett and its subsidiaries as any of the Lenders may
from time to time reasonably request.
The financial statements of Gannett and its Subsidiaries
hereafter delivered to the Lenders pursuant to this Section 5.1 will fairly set
forth the financial condition of Gannett and its Subsidiaries as of the dates
thereof, and the results of Gannett's and its Subsidiaries' operations for the
respective periods stated therein, all in accordance with GAAP.
Section 5.2 Payment of Obligations. Duly pay and discharge all
(i) material obligations when due and (ii) taxes, assessments and governmental
charges of which Gannett has knowledge assessed against it or against its
properties prior to the date on which penalties are attached thereto, unless and
only to the extent that such obligations, taxes, assessments or charters are not
material or shall be contested in good faith by appropriate proceedings
initiated by Gannett.
Section 5.3 Books and Records; Inspection Rights. (a) Keep
proper books of records and account in which true and correct entries, in all
material respects, are made of all dealings in relation to its business and
activities and (b) permit any Lender, upon reasonable request, to inspect at all
reasonable times its properties, operations and books of account.
Section 5.4 Notices of Material Events. Promptly give notice
to the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of Gannett or any of its Subsidiaries or (ii) litigation,
investigation or proceeding that may exist at any time between Gannett
or any of its Subsidiaries and any Governmental Authority, that in
either case, if not cured or if adversely determined, as the case may
be, would have a material adverse effect on (A) the business, assets,
operations or condition, financial or otherwise, of Gannett and its
Subsidiaries taken as a whole or (B) the validity or enforceability of
this Agreement or the material rights or remedies of the Administrative
Agent and the Lenders hereunder; and
33
(c) any other development or event that has had or would have
a Material Adverse Effect.
Each notice pursuant to this Section 5.4 shall be accompanied by a statement of
an appropriate officer of Gannett setting forth details of the occurrence
referred to therein and stating what action is proposed to take with respect
thereto.
Section 5.5 Existence; Conduct of Business. Do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges and franchises
material to the conduct of its business; provided that the foregoing shall not
prohibit any merger, consolidation or other transaction permitted under Section
6.2.
Section 5.6 Maintenance of Properties; Insurance. (a) Keep and
maintain all property material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted, and (b) maintain, with
financially sound and reputable insurance companies, insurance in such amounts
and against such risks as are customarily maintained by companies engaged in the
same or similar businesses operating in the same or similar locations.
Section 5.7 Compliance with Laws. Comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
would not have a material adverse effect on (a) the business, assets, operations
or condition, financial or otherwise, of Gannett and its Subsidiaries taken as a
whole or (b) the validity or enforceability of this Agreement or the material
rights or remedies of the Administrative Agent and the Lenders hereunder.
Section 5.8 Debt Ratings. With respect to Gannett, use its
reasonable best efforts to maintain at all times a senior unsecured long-term
debt rating from either S&P or ▇▇▇▇▇'▇.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, Gannett covenants and agrees with the Lenders that, it shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly:
Section 6.1 Liens. Create, incur, assume or permit to exist
any Lien on any of its properties or assets now owned or hereafter acquired by
it, without making provision satisfactory to the Lenders whereby the Lenders
obtain an equal and ratable or prior Lien as security for the payment of the
Borrowings; or transfer any of its assets for the purpose of subjecting them to
the payment of obligations prior in payment to any of its general creditors; or
allow any liability of, or claims, or demands against it, or any of its
Subsidiaries, to exist for more than 30 days if the liability, claim or demand
might by law be given any priority over those
34
of its general creditors; provided, however, that none of the above shall
prohibit Gannett or any Subsidiary from creating or allowing any of the
following to exist:
(a) Liens incurred after the date hereof covering any of
Gannett's or its Subsidiaries' properties or assets; provided that the
total principal amount of indebtedness of Gannett and its Subsidiaries
(on a consolidated basis) secured by all such Liens permitted under
this Section 6.1(a) at any time outstanding shall not exceed 50% of Net
Property, Plant and Equipment;
(b) leases of all types, whether or not such leases constitute
leasebacks of property sold or transferred by Gannett or any
Subsidiary;
(c) pledges and deposits securing the payment of workmen's
compensation or insurance premiums, good-faith deposits in connection
with tenders, contracts (other than contracts for the payment of
borrowed money) or leases, deposits to secure surety or appeal bonds,
liens, pledges or deposits in connection with contracts made with or at
the request of the United States Government or any agency thereof, or
pledges or deposits for similar purposes made in the ordinary course of
business;
(d) liens securing taxes, assessments or governmental or other
charges or claims for labor, materials or supplies which are not
delinquent or which are being contested in good faith by appropriate
proceedings and liens, restrictions, easements, licenses on the use of
property or minor irregularities in the title thereof, which do not, in
Gannett's opinion, in the aggregate materially impair their use in
Gannett's and its Subsidiaries' business; and
(e) Liens on the assets of any Person which becomes a
Subsidiary of Gannett after the date of this Agreement to the extent
that such liens existed prior to the date of acquisition of such
corporation by Gannett; provided that such Liens existed at the time
such Person became a Subsidiary of Gannett and were not created in
anticipation thereof.
Section 6.2 Fundamental Changes. Merge, consolidate, sell,
lease, transfer or otherwise dispose of all or substantially all of its assets,
unless immediately after giving effect to such transaction, it shall be in
compliance with Sections 6.1 and 6.3 hereof and, in the case of a merger or
consolidation by Gannett, Gannett shall be the survivor corporation.
Section 6.3 Shareholders' Equity. Permit Gannett's Total
Shareholders' Equity at any time to be less than $2,500,000,000.
Section 6.4 Interest Coverage Ratio. Permit the ratio of
Gannett's Consolidated EBITDA to Gannett's Adjusted Consolidated Total Interest
Expense at any time to be less than 3.0 to 1.0.
ARTICLE VII
Events of Default
Section 7.1 Events of Default. The following are Events of
Default:
35
(a) Gannett shall fail to pay when due in accordance with the
terms hereof (i) any principal on any Loan and such failure shall have
continued for a period of three Business Days or (ii) any interest on
any Loan, or any other amount payable hereunder, and such failure shall
have continued for a period of five Business Days.
(b) Gannett shall (A) default in any payment of principal or
of interest on any other obligation for borrowed money in excess of
$50,000,000 beyond any grace period provided with respect thereto, or
(B) default in the performance of any other agreement, term or
condition contained in any agreement under which any such obligation is
created, if the effect of such default is to cause such obligation to
be accelerated or become due prior to its stated maturity.
(c) Any representation or warranty herein made by Gannett, or
any certificate or financial statement furnished by Gannett pursuant to
the provisions hereof, shall prove to have been false or misleading in
any material respect as of the time made or furnished and Gannett shall
fail to take corrective measures satisfactory to the Required Lenders
within 30 days after notice thereof to Gannett from any Lender or the
Administrative Agent or by Gannett to the Administrative Agent.
(d) Gannett shall default in the performance of any other
covenant, condition or provision hereof and such default shall not be
remedied to the satisfaction of the Required Lenders within a period of
30 days after notice thereof to Gannett from any Lender or the
Administrative Agent or by Gannett to the Administrative Agent.
(e) Gannett or any Subsidiary with more than $100,000,000 in
revenue in the preceding fiscal year (other than Gannett Satellite
Information Network, Inc.) shall (A) apply for or consent to the
appointment of a receiver, trustee, or liquidator of Gannett, (B) make
a general assignment for the benefit of creditors, or (C) file a
voluntary petition in bankruptcy or a petition or an answer seeking
reorganization or an arrangement with creditors or take advantage of
any insolvency law or an answer admitting the material allegations of a
petition filed against Gannett in any bankruptcy, reorganization or
insolvency proceeding, or corporate action shall be taken by Gannett
for the purpose of affecting any of the foregoing.
(f) An order, judgment or decree shall be entered, without the
application, approval or consent of Gannett, by any court of competent
jurisdiction, approving a petition seeking reorganization of Gannett or
appointing a receiver, trustee or liquidator of Gannett or of all or a
substantial part of the assets of Gannett, and such order, judgment or
decree shall continue unstayed and in effect for any period of ninety
(90) consecutive days.
(g) One or more final, non-appealable judgments for the
payment of money in an aggregate amount in excess of $100,000,000 shall
be rendered against Gannett, any Subsidiary or any combination thereof,
and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed or bonded;
36
Section 7.2 Remedies. If an Event of Default shall occur and be
continuing:
(a) If an Event of Default specified in Section 7.1(e) or (f) shall
occur and be continuing, automatically the Commitments shall immediately
terminate and the Loans (with accrued interest thereon) and all other amounts
owing under this Agreement shall immediately become due and payable.
(b) If an Event of Default other than those specified in Section 7.1(e)
or (f) shall occur and be continuing, either or both of the following actions
may be taken: (i) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to Gannett, declare Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii) with the consent
of the Required Lenders, the Administrative Agent may, or upon the request of
the Required Lenders, the Administrative Agent shall, by notice to Gannett,
declare the Loans (with accrued interest thereon) and all other amounts owing
under this Agreement to be due and payable forthwith, whereupon the same shall
immediately become due and payable.
(c) Except as expressly provided above in this Article, presentment,
demand, protest and all other notices of any kind are hereby expressly waived by
Gannett.
(d) Any Lender giving any notice to Gannett under this Article 7 shall
simultaneously give like notice to the Administrative Agent.
ARTICLE VIII
The Administrative Agent
Section 8.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement, and each such Lender irrevocably authorizes the Administrative Agent,
in such capacity, to take such action on its behalf under the provisions of this
Agreement and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement, together
with such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or otherwise exist against the Administrative Agent.
Section 8.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
37
Section 8.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement (except to the extent that any of the foregoing are found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by Gannett or any officer thereof
contained in this Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
for any failure of Gannett to perform its obligations hereunder or thereunder.
The Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of Gannett.
Section 8.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to Gannett), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any promissory note as the
owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent. The Administrative Agent shall be fully justified in failing or refusing
to take any action under this Agreement unless it shall first receive such
advice or concurrence of the Required Lenders (or, if so specified by this
Agreement, all Lenders) as it deems appropriate or it shall first be indemnified
to its satisfaction by the Lenders against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement in accordance with a
request of the Required Lenders (or, if so specified by this Agreement, all
Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Loans.
Section 8.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default unless the Administrative Agent has received notice from a Lender or
Gannett referring to this Agreement, describing such Default or Event of Default
and stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
notice thereof to the Lenders. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Required Lenders (or, if so specified by this Agreement, all Lenders);
provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
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Section 8.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
the Administrative Agent hereafter taken, including any review of the affairs of
a Gannett or any affiliate of Gannett, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of Gannett and its affiliates
and made its own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon the Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of Gannett and its affiliates. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of Gannett or any
affiliate of Gannett that may come into the possession of the Administrative
Agent or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
Section 8.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
Gannett and without limiting the obligation of Gannett to do so), ratably
according to their respective Aggregate Commitment Percentages in effect on the
date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Commitment Percentages immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the
Loans) be imposed on, incurred by or asserted against the Administrative Agent
in any way relating to or arising out of, the Commitments, this Agreement or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the
Administrative Agent's gross negligence or willful misconduct. The agreements in
this Section shall survive the payment of the Loans and all other amounts
payable hereunder.
Section 8.8 Agent in Its Individual Capacity. The Administrative Agent
and its affiliates may make loans to, accept deposits from and generally engage
in any kind of business with Gannett as though the Administrative Agent were not
the Administrative Agent.
39
With respect to its Loans made or renewed by it, the Administrative Agent shall
have the same rights and powers under this Agreement as any Lender and may
exercise the same as though it were not the Administrative Agent, and the terms
"Lender" and "Lenders" shall include the Administrative Agent in its individual
capacity.
Section 8.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 15 Business Days' notice to the Lenders
and Gannett. If the Administrative Agent shall resign as Administrative Agent
under this Agreement, then (a) so long as an Event of Default under Section
7.1(a), 7.1(e) or 7.1(f) with respect to Gannett shall not have occurred and be
continuing, Gannett shall appoint from among the Lenders a successor agent for
the Lenders, which successor agent shall be subject to approval by the Required
Lenders (which approval shall not be unreasonably withheld, conditioned or
delayed) and (b) if an Event of Default under Section 7.1(a), 7.1(e) or 7.1(f)
with respect to Gannett shall have occurred and be continuing, the Required
Lenders shall appoint from among the Lenders a successor agent for the Lenders,
whereupon such successor agent shall succeed to the rights, powers and duties of
the Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 15 Business Days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Article 8 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement.
Section 8.10 Co-Syndication Agents and Documentation Agent.
Notwithstanding any provision to the contrary elsewhere in this Agreement,
neither of the Co-Syndication Agents nor the Documentation Agent shall have any
duties or responsibilities hereunder, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against either of the Co-Syndication Agents or the Documentation Agent.
ARTICLE IX
Miscellaneous
Section 9.1 Amendments and Waivers. Neither this Agreement nor any
terms hereof may be amended, supplemented or modified except in accordance with
the provisions of this Section 9.1. The Required Lenders and Gannett may, or,
with the written consent of the Required Lenders, the Administrative Agent and
Gannett may, from time to time, (a) enter into written amendments, supplements
or modifications hereto for the purpose of adding any provisions to this
Agreement or changing in any manner the rights of the Lenders or of Gannett
hereunder or thereunder or (b) waive, on such terms and conditions as the
Required Lenders or
40
the Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of this Agreement or any Default or Event of Default and
its consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the
final scheduled date of maturity of any Loan, extend the scheduled date of any
amortization payment in respect of any Loan, reduce the stated rate of any
interest or fee payable hereunder (except (x) in connection with the waiver of
applicability of any post-default increase in interest rates, which waiver shall
be effective with the consent of the Required Lenders and (y) that any amendment
or modification of defined terms used in the financial covenants in this
Agreement shall not constitute a reduction in the rate of interest or fees for
purposes of this clause (i)) or extend the scheduled date of any payment
thereof, in each case without the written consent of each Lender directly
affected thereby; (ii) eliminate or reduce the voting rights of any Lender under
this Section 9.1 or extend or increase the Commitment of any Lender, in each
case without the written consent of such Lender; (iii) reduce any percentage
specified in the definition of Required Lenders, consent to the assignment or
transfer by Gannett of any of its rights and obligations under this Agreement,
in each case without the written consent of all Lenders; (iv) amend, modify or
waive any provision of Article 8 without the written consent of the
Administrative Agent and any other Agent affected thereby; or (v) amend, modify
or waive any provision of Section 2.13(a) or (b) without the written consent of
each Lender directly affected thereby. Notwithstanding anything to the contrary
contained in this Section 9.1, (y) no Five-Year Lender's consent (and, for
purposes of determining Required Lenders, the Five-Year Lenders shall not be
taken into account) shall be required to (i) extend the 364-Day Termination Date
or (ii) change the stated rate of any interest or fee payable hereunder in
respect of the 364-Day Facility and (z) no 364-Day Lender's consent (and, for
the purposes of determining Required Lenders, the 364-Day Lenders shall not be
taken into account) shall be required to (i) extend the Five-Year Termination
Date or (ii) change the stated rate of any interest or fee payable hereunder in
respect of the Five-Year Facility. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding on Gannett, the Lenders, the Administrative Agent and all future
holders of the Loans. In the case of any waiver, Gannett, the Lenders and the
Administrative Agent shall be restored to their former position and rights
hereunder, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
For the avoidance of doubt, this Agreement may be amended (or amended
and restated) with the written consent of the Required Lenders, the
Administrative Agent and Gannett (a) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to
time outstanding thereunder and the accrued interest and fees in respect thereof
(collectively, the "Additional Extensions of Credit") to share ratably in the
benefits of this Agreement with the Loans and the accrued interest and fees in
respect thereof and (b) to include appropriately the Lenders holding such credit
facilities in any determination of the Required Lenders.
Section 9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the
41
case of telecopy notice, when received, addressed as follows in the case of
Gannett and the Administrative Agent, and as set forth in an administrative
questionnaire delivered to the Administrative Agent in the case of the Lenders,
or to such other address as may be hereafter notified by the respective parties
hereto:
Gannett: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice
President of
Finance and
Treasurer
Telecopy: 703-854-2038
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
The Administrative Agent: Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Agency Services
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
Section 9.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
Section 9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the making of the Loans and
other extensions of credit hereunder.
Section 9.5 Payment of Expenses and Taxes. (a) Gannett agrees (i) to
pay or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment,
42
supplement or modification to, this Agreement and any other documents prepared
in connection herewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including the reasonable fees and
disbursements of counsel to the Administrative Agent and filing and recording
fees and expenses, with statements with respect to the foregoing to be submitted
to Gannett prior to the Effective Date (in the case of amounts to be paid on the
Effective Date) and from time to time thereafter on a quarterly basis or such
other periodic basis as the Administrative Agent shall deem appropriate, (ii) to
pay or reimburse each Lender and the Administrative Agent for all its reasonable
costs and expenses incurred in connection with the enforcement of any rights
under this Agreement and any such other documents, including the reasonable fees
and disbursements of counsel to each Lender and of counsel to the Administrative
Agent, and (iii) to pay, indemnify, and hold each Lender and the Administrative
Agent and their respective officers, directors, employees, affiliates, agents
and controlling persons (each, an "Indemnitee") harmless from and against any
and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement and any such other documents, including any of
the foregoing relating to the use of proceeds of the Loans and the reasonable
fees and expenses of legal counsel in connection with claims, actions or
proceedings by any Indemnitee against Gannett under this Agreement (all the
foregoing in this clause (d), collectively, the "Indemnified Liabilities"),
provided, that Gannett shall have no obligation hereunder to any Indemnitee with
respect to Indemnified Liabilities to the extent such Indemnified Liabilities
have resulted from the gross negligence or willful misconduct of such
Indemnitee. All amounts due under this Section 9.5(a) shall be payable not later
than 10 days after written demand therefor.
(b) Notwithstanding anything to the contrary in Section 9.5(a), (i)
Gannett shall have no such obligation for costs and expenses if Gannett prevails
or successfully defeats any enforcement or collection proceedings; and (ii) if,
by final adjudication in any proceeding not involving Gannett's bankruptcy,
reorganization or insolvency, the Lenders receive less relief than claimed,
Gannett's obligation for costs and expenses shall be limited proportionately to
the relief granted to the Lenders.
(c) Gannett agrees to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, that may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement and any such other documents.
(d) If Gannett is required to commence proceedings against any Lender
to enforce its Commitment, the Lender will pay Gannett's reasonable costs and
expenses (including attorneys' fees) if Gannett succeeds, or a share of such
reasonable costs and expenses proportionate to Gannett's recovery if Gannett is
only partially successful.
(e) The agreements in this Section 9.5 shall survive repayment of the
Loans and all other amounts payable hereunder.
43
Section 9.6 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of Gannett, the
Lenders, the Administrative Agent, all future holders of the Loans and their
respective successors and assigns, except that Gannett may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the consent
of Gannett or the Administrative Agent, in accordance with applicable law, at
any time sell to one or more banks, financial institutions or other entities
(each, a "Participant") participating interests in any Loan owing to such
Lender, any Commitment of such Lender or any other interest of such Lender
hereunder. In the event of any such sale by a Lender of a participating interest
to a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement, and Gannett and
the Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. In no event shall any Participant under any such participation have
any right to approve any amendment or waiver of any provision of this Agreement,
or any consent to any departure by Gannett therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Loans or any fees payable hereunder, or postpone the date of the final
maturity of the Loans, in each case to the extent subject to such participation.
Gannett agrees that if amounts outstanding under this Agreement and the Loans
are due or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall, to
the maximum extent permitted by applicable law, be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in Section
9.7(a) as fully as if it were a Lender hereunder. Gannett also agrees that each
Participant shall be entitled to the benefits of Sections 2.14 and 2.15 with
respect to its participation in the Commitments and the Loans outstanding from
time to time as if it was a Lender; provided that, in the case of Section 2.15,
such Participant shall have complied with the requirements of said Section and
provided, further, that no Participant shall be entitled to receive any greater
amount pursuant to any such Section than the transferor Lender would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender other than any Conduit Lender (an "Assignor") may, in
accordance with applicable law, at any time and from time to time assign to any
Lender or any Lender Affiliate or, with the consent of Gannett and the
Administrative Agent (which, in each case, shall not be unreasonably withheld,
delayed or conditioned), to an additional bank, financial institution or other
entity (an "Assignee") all or any part of its rights and obligations under this
Agreement pursuant to an Assignment and Acceptance, executed by such Assignee,
such Assignor and any other Person whose consent is required pursuant to this
paragraph, and delivered to the Administrative Agent for its acceptance and
recording in the Register; provided that, unless otherwise agreed by Gannett and
the Administrative Agent, no such assignment to an
44
Assignee (other than any Lender or any Lender Affiliate) shall be in an
aggregate principal amount of less than $10,000,000, in each case except in the
case of an assignment of all of a Lender's interests under this Agreement. For
purposes of the proviso contained in the preceding sentence, the amount
described therein shall be aggregated in respect of each Lender and its Lender
Affiliates, if any. Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Commitment and/or Loans as set forth
therein, and (y) the Assignor thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of an Assignor's
rights and obligations under this Agreement, such Assignor shall cease to be a
party hereto). Notwithstanding any provision of this Section 9.6, the consent of
Gannett shall not be required for any assignment that occurs when an Event of
Default shall have occurred and be continuing. Notwithstanding the foregoing,
any Conduit Lender may assign at any time to its designating Lender hereunder
without the consent of Gannett or the Administrative Agent any or all of the
Loans it may have funded hereunder and pursuant to its designation agreement and
without regard to the limitations set forth in the first sentence of this
Section 9.6(c).
(d) The Administrative Agent shall, on behalf of Gannett, maintain at
its address referred to in Section 9.2 a copy of each Assignment and Acceptance
delivered to it and a register (the "Register") for the recordation of the names
and addresses of the Lenders and the Commitment of, and the principal amount of
the Loans owing to, each Lender from time to time. The entries in the Register
shall be conclusive, in the absence of manifest error, and Gannett, the
Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register as the owner of the Loans and any promissory notes
evidencing the Loans recorded therein for all purposes of this Agreement. Any
assignment of any Loan, whether or not evidenced by a promissory note, shall be
effective only upon appropriate entries with respect thereto being made in the
Register. Any assignment or transfer of all or part of a Loan evidenced by a
promissory note shall be registered on the Register only upon surrender for
registration of assignment or transfer of the promissory note evidencing such
Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon
one or more new promissory notes shall be issued to the designated Assignee.
(e) Upon its receipt of an Assignment and Acceptance executed by an
Assignor, an Assignee and any other Person whose consent is required by Section
9.6(c), together with payment to the Administrative Agent of a registration and
processing fee of $3,500 (except that no such registration and processing fee
shall be payable in the case of an Assignee which is a Lender Affiliate of the
relevant Assignor), the Administrative Agent shall (i) promptly accept such
Assignment and Acceptance and (ii) record the information contained therein in
the Register on the effective date determined pursuant thereto.
(f) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section 9.6 concerning assignments relate only to
absolute assignments and that such provisions do not prohibit assignments
creating security interests, including any pledge or assignment by a Lender to
secure obligations to a Federal Reserve Bank in accordance with applicable law;
provided that no such pledge or assignment shall release a Lender from any of
its
45
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) Gannett, upon receipt of written notice from the relevant Lender,
agrees to issue a promissory note to any Lender requiring such a note to
facilitate transactions of the type described in paragraph (f) above.
(h) Each of Gannett, each Lender and the Administrative Agent hereby
confirms that it will not institute against a Conduit Lender or join any other
Person in instituting against a Conduit Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any state bankruptcy or
similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; provided, however,
that each Lender designating any Conduit Lender hereby agrees to indemnify, save
and hold harmless each other party hereto for any loss, cost, damage or expense
arising out of its inability to institute such a proceeding against such Conduit
Lender.
Section 9.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular
Lender, if any Lender (a "Benefited Lender") shall, at any time after the Loans
and other amounts payable hereunder shall immediately become due and payable
pursuant to Section 7.2, receive any payment of all or part of the Obligations
owing to it, or receive any collateral in respect thereof (whether voluntarily
or involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 7.1(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of the obligations owing to such other Lender, such Benefited Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of the Obligations owing to each such other Lender, or shall provide
such other Lenders with the benefits of any such collateral, as shall be
necessary to cause such Benefited Lender to share the excess payment or benefits
of such collateral ratably with each of the Lenders; provided, however, that if
all or any portion of such excess payment or benefits is thereafter recovered
from such Benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to Gannett, any such
notice being expressly waived by Gannett to the extent permitted by applicable
law, upon any amount becoming due and payable by Gannett hereunder (whether at
the stated maturity, by acceleration or otherwise), to set off and appropriate
and apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the
account of Gannett, as the case may be. Each Lender agrees promptly to notify
Gannett and the Administrative Agent after any such setoff and application made
by such Lender, provided that the failure to give such notice shall not affect
the validity of such setoff and application.
Section 9.8 Counterparts. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts, and all
of said counterparts
46
taken together shall be deemed to constitute one and the same instrument.
Delivery of an executed signature page of this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof. A set of the copies of this Agreement signed by all the parties shall be
lodged with Gannett and the Administrative Agent.
Section 9.9 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 not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 9.10 Integration. This Agreement represents the entire
agreement of Gannett, the Administrative Agent and the Lenders with respect to
the subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender relative
to the subject matter hereof not expressly set forth or referred to herein.
SECTION 9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 9.12 Submission To Jurisdiction; Waivers. Gannett hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the courts of the State of New York, the courts
of the United States for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to Gannett at its address set forth in Section 9.2 or at such
other address of which the Administrative Agent shall have been
notified pursuant thereto; and
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to ▇▇▇ in any other jurisdiction.
Section 9.13 Acknowledgements. Gannett hereby acknowledges that:
47
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to Gannett arising out of or in
connection with this Agreement, and the relationship between
Administrative Agent and Lenders, on one hand, and Gannett, on the
other hand, in connection herewith or therewith is solely that of
debtor and creditor; and
(c) no joint venture is created hereby or otherwise exists by
virtue of the transactions contemplated hereby among the Lenders or
among Gannett and the Lenders.
Section 9.14 Confidentiality. Each of the Administrative Agent and each
Lender agrees to keep confidential all non-public information provided to it by
Gannett pursuant to this Agreement; provided that nothing herein shall prevent
the Administrative Agent or any Lender from disclosing any such information (a)
to the Administrative Agent, any other Lender or any Lender Affiliate subject to
this Section 9.14, (b) subject to an agreement to comply with the provisions of
this Section, to any actual or prospective Transferee or any direct or indirect
counterparty to any Hedge Agreement (or any professional advisor to such
counterparty), (c) to its employees, directors, agents, attorneys, accountants
and other professional advisors or those of any of its affiliates, provided that
such Persons to whom disclosure is made will be informed of the confidential
nature of such information and instructed to keep such information confidential,
(d) upon the request or demand of any Governmental Authority or in response to
any order of any court or other Governmental Authority, upon prior written
notice to Gannett to the extent reasonably practicable, (e) to the extent
required by any Requirement of Law (other than as provided in clause (d) above)
or in connection with any litigation or similar proceeding, provided that
Gannett shall be promptly notified, to the extent reasonably practicable, prior
to any such disclosure so that Gannett may contest such disclosure or seek
confidential treatment thereof, (f) that has been publicly disclosed, (g) to any
nationally recognized rating agency that requires access to information about a
Lender's investment portfolio in connection with ratings issued with respect to
such Lender, or (h) in connection with the exercise of any remedy hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GANNETT CO., INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President of
Finance and Treasurer
BANK OF AMERICA, N.A., as
Administrative Agent and a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Principal
JPMORGAN CHASE BANK, as
Co-Syndication Agent and a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
BANK ONE, NA, as Co-Syndication Agent
and a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Managing Director
BARCLAYS BANK PLC, as Documentation
Agent and a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: Director
HSBC BANK USA
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Vice President
CITIBANK N.A.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: Director
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Title: Vice President
LLOYDS TSB BANK PLC
By: /s/ Windsor ▇. ▇▇▇▇▇▇
---------------------------------
Title: Director, Corporate
Banking, USA
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Assistant Vice President,
Corporate Banking, USA
SUNTRUST BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Director
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Vice President
BANK OF HAWAII
By: /s/ ▇▇▇▇ ▇▇▇
---------------------------------
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
FIRSTAR BANK, NA
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
FIFTH THIRD BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Large Corporate Officer
MELLON BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Lending Officer
FIRST HAWAIIAN BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Assistant Vice President
ASSOCIATED BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Senior Vice President
HIBERNIA NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Vice President
SCHEDULE 1.1
LENDER 364-DAY FIVE-YEAR
------ COMMITMENT COMMITMENT
-------------- --------------
BANK OF AMERICA, N.A $ 180,000,000 $ 180,000,000
JPMORGAN CHASE BANK $ 180,000,000 $ 180,000,000
BANKONE, NA $ 180,000,000 $ 180,000,000
BARCLAYS BANK PLC $ 150,000,000 $ 150,000,000
HSBC BANK USA $ 112,500,000 $ 112,500,000
FLEET NATIONAL BANK $ 112,500,000 $ 112,500,000
CITIBANK N.A $ 100,000,000 $ 100,000,000
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
$ 87,500,000 $ 87,500,000
LLOYDS TSB BANK PLC $ 50,000,000 $ 50,000,000
SUNTRUST BANK $ 50,000,000 $ 50,000,000
THE NORTHERN TRUST COMPANY
$ 40,000,000 $ 40,000,000
BANK OF HAWAII $ 25,000,000 $ 25,000,000
BANK OF TOKYO-MITSUBISHI TRUST CO
$ 25,000,000 $ 25,000,000
FIRSTAR BANK, NA $ 25,000,000 $ 25,000,000
FIFTH THIRD BANK $ 25,000,000 $ 25,000,000
MELLON BANK, N.A $ 12,500,000 $ 12,500,000
FIRST HAWAIIAN BANK $ 10,000,000 $ 10,000,000
ASSOCIATED BANK NATIONAL ASSOCIATION
$ 10,000,000 --
HIBERNIA NATIONAL BANK $ 10,000,000 --
-------------- --------------
$1,385,000,000 $1,365,000,000
EXHIBIT A to the
CREDIT AGREEMENT
FORM OF ADDENDUM
The undersigned (i) agrees to all of the provisions of the
Competitive Advance and Revolving Credit Agreement, dated as of _________, 2002
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"; terms defined therein being used herein as therein defined unless
otherwise defined), among Gannett Co., Inc., the lenders parties thereto (the
"Lenders"), Bank of America, N.A., as Administrative Agent, JPMorgan Chase Bank
and Bank One, NA, as Co-Syndication Agents, and Barclays Bank PLC, as
Documentation Agent, and (ii) becomes a party thereto, as a Lender, with a
364-Day Commitment and/or a Five-Year Commitment, as the case may be, as set
forth opposite the undersigned Lender's name on Schedule 1.1 to the Credit
Agreement, as such amount may be changed from time to time as provided in the
Credit Agreement.
--------------------------------------
(NAME OF LENDER)
By:
----------------------------------
Name:
Title:
Dated as of __________, 2002
EXHIBIT B to the
CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Competitive Advance and Revolving
Credit Agreement, dated as of ___________, 2002 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"; terms defined
therein being used herein are therein defined unless otherwise defined), among
Gannett Co., Inc., a Delaware corporation ("Gannett"), the several banks and
other financial institutions or entities from time to time parties thereto (the
"Lenders"), Bank of America, N.A., as Administrative Agent, JPMorgan Chase Bank
and Bank One, NA, as Co-Syndication Agents, and, Barclays Bank PLC, as
Documentation Agent.
The Assignor identified on Schedule l hereto (the "Assignor")
and the Assignee identified on Schedule l hereto (the "Assignee") agree as
follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), the interest described in Schedule 1
hereto (the "Assigned Interest") in and to the Assignor's rights and obligations
under the Credit Agreement with respect to those credit facilities contained in
the Credit Agreement as are set forth on Schedule 1 hereto (individually, an
"Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount for each Assigned Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument or document
furnished pursuant thereto, other than that the Assignor has not created any
adverse claim upon the interest being assigned by it hereunder and that such
interest is free and clear of any such adverse claim; and (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of Gannett, any of its Subsidiaries or any other obligor or
the performance or observance by Gannett, any of its Subsidiaries or any other
obligor of any of their respective obligations under the Credit Agreement or any
other instrument or document furnished pursuant hereto or thereto.
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant thereto, and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, the Administrative Agent
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender.
4. The effective date of this Assignment and Acceptance shall
be the Effective Date of Assignment described in Schedule 1 hereto (the
"Effective Date"). Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent and to Gannett for their
consent (if such consent is required) and, if such consent is granted, for
acceptance and recording by the Administrative Agent pursuant to the Credit
Agreement, effective as of the Effective Date (which shall not, unless otherwise
agreed to by the Administrative Agent, be earlier than five Business Days after
the date of such acceptance and recording by the Administrative Agent).
5. Upon such consent, acceptance and recording, from and after
the Effective Date, the Administrative Agent shall make all payments in respect
of the Assigned Interest (including payments of principal, interest, fees and
other amounts) to the Assignee whether such amounts have accrued prior to or on
or after the Effective Date. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Administrative Agent for periods
prior to the Effective Date or with respect to the making of this assignment
directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and shall be bound by the provisions thereof and (b) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
Schedule 1
Percentage Assigned of Facility (set
Principal Amount forth, to at least 8 decimals, as a
Facility Assigned Assigned percentage of the aggregate Facility)
--------------------------------------------------------------------------------------
364-Day Facility: $ %
Five-Year Facility:
Incremental Facility:
Effective Date of Assignment: __________ ___, ______
[Name of Assignor], as Assignor
By:
----------------------------------
Name:
Title:
[Name of Assignee], as Assignee
By:
----------------------------------
Name:
Title:
The undersigned hereby consent to the within assignment:
GANNETT CO., INC. BANK OF AMERICA, N.A., as
Administrative Agent
By: By:
-------------------------------- ---------------------------------
Name: Name:
Title: Title:
EXHIBIT C-1 to the
CREDIT AGREEMENT
FORM OF COMPETITIVE BID REQUEST
Bank of America, N.A., as Administrative
Agent for the Lenders referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
_________, ___
Attention:
Dear Sirs:
The undersigned, Gannett Co., Inc. ("Gannett"), refers to the
Competitive Advance and Revolving Credit Agreement, dated as of __________, 2002
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"; terms defined therein being used herein are therein defined unless
otherwise defined), among Gannett, the several banks and other financial
institutions or entities from time to time parties thereto (the "Lenders"), Bank
of America, N.A., as Administrative Agent, JPMorgan Chase Bank and Bank One, NA,
as Co-Syndication Agents, and Barclays Bank PLC, as Documentation Agent. Gannett
hereby gives you notice pursuant to subsection 2.3(b) of the Credit Agreement
that it requests a Competitive Loan under the Credit Agreement, and in that
connection sets forth below the terms on which such Competitive Loan is
requested to be made:
(A) Facility under which Competitive
Borrowing is to be made _______________
(B) Borrowing Date _______________
(C) Principal Amount of Competitive
Borrowing(1) _______________
(D) Interest rate basis(2) _______________
(E) Interest Period and the last day thereof(3) _______________
----------
(1) Not less than $10,000,000 (and in integral multiples of $1,000,000 in
excess thereof) or greater than the excess, if any, of the aggregate
364-Day Commitments, Five-Year Commitments or Incremental Facility
Commitments, as applicable, over the aggregate principal amount of all
364-Day Loans, Five-Year Loans or Incremental Loans, as applicable,
outstanding immediately prior to the making of such requested
Competitive Borrowing.
(2) Eurodollar Competitive Loan or Fixed Rate Loan.
(3) Which shall be subject to the definition of "Interest Period" and end
on or before the 364-Day Termination Date, Five-Year Termination Date
or Incremental Facility Maturity Date, as applicable.
2
Very truly yours,
GANNETT CO., INC.
By:
----------------------------------
Name:
Title:
EXHIBIT C-2 to the
CREDIT AGREEMENT
FORM OF INVITATION FOR COMPETITIVE BIDS
[Name of Lender]
[Address]
_________, ___
Attention:
Dear Sirs:
Reference is made to Competitive Advance and Revolving Credit
Agreement, dated as of _________, 2002 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"; terms defined therein being
used herein are therein defined unless otherwise defined), among Gannett Co.,
Inc. ("Gannett"), the several banks and other financial institutions or entities
from time to time parties thereto, Bank of America, N.A., as Administrative
Agent, JPMorgan Chase Bank and Bank One, NA, as Co-Syndication Agents, and
Barclays Bank PLC, as Documentation Agent. Gannett made a Competitive Bid
Request on _________, ____, pursuant to subsection 2.3(b) of the Credit
Agreement, and in that connection you are invited to submit a Competitive Bid by
[Date]/[Time].(1) Your Competitive Bid must comply with subsection 2.3(d) of the
Credit Agreement and the terms set forth below on which the Competitive Bid
Request was made:
(A) Facility under which Competitive
Borrowing is to be made _______________________
(B) Borrowing Date _______________________
(C) Principal Amount of Competitive _______________________
Borrowing
(D) Interest rate basis(2) _______________________
(E) Interest Period and the last day
thereof(3) _______________________
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
----------------------------------
Name:
Title:
----------
(1) The Competitive Bid must be received by the Administrative Agent (i) in
the case of Eurodollar Competitive Loans, not later than 9:30 A.M.
(Dallas, TX time) three Business Days prior to the proposed Borrowing
Date, and (ii) in the case of Fixed Rate Loans, not later than 9:30
A.M. (Dallas, TX time) on the proposed Borrowing Date.
(2) Eurodollar Competitive Loan or Fixed Rate Loan.
(3) Which shall be subject to the definition of "Interest Period" and end
on or before the 364-Day Termination Date, Five-Year Termination Date
or Incremental Facility Maturity Date, as applicable.
EXHIBIT C-3 to the
CREDIT AGREEMENT
FORM OF COMPETITIVE BID
Bank of America, N.A., as Administrative
Agent for the Lenders referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
_________, ___
Attention:
Dear Sirs:
The undersigned, [Name of Lender], refers to the Competitive
Advance and Revolving Credit Agreement, dated as of __________, 2002 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"; terms defined therein being used herein are therein defined unless
otherwise defined), among Gannett Co., Inc. ("Gannett"), the several banks and
other financial institutions or entities from time to time parties thereto (the
"Lenders"), Bank of America, N.A., as Administrative Agent, JPMorgan Chase Bank
and Bank One, NA, as Co-Syndication Agents, and Barclays Bank PLC, as
Documentation Agent. The undersigned hereby makes a Competitive Bid pursuant to
subsection 2.3(d) of the Credit Agreement, in response to the Competitive Bid
Request made by Gannett on _________, ___, and in that connection sets forth
below the terms on which such Competitive Bid is made:
(A) Facility under which Competitive
Borrowing is to be made ________________________
(B) Borrowing Date ________________________
(C) Principal Amount(1) ________________________
(D) Competitive Bid Rate(2) ________________________
(E) Interest Period and the last
day thereof ________________________
----------
(1) Not less than $5,000,000 or greater than the requested Competitive
Borrowing and in integral multiples of $1,000,000 and may be subject to
limitation as to the maximum aggregate principal amount of Competitive
Loans for which offers made by such quoting Lender may be accepted. Up
to five separate offers may be included with respect to each Interest
Period.
(2) i.e., Eurodollar Rate + or - __%, in the case of Eurodollar Competitive
Loans or __%, in the case of Fixed Rate Loans, in each case specified
in increments of 1/10,000th of 1%.
2
The undersigned hereby confirms that the above offer(s) are
irrevocable and that it is prepared, subject to the conditions set forth in the
Credit Agreement, to extend credit to Gannett upon acceptance by Gannett of this
bid in accordance with subsection 2.3(f) of the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By:
----------------------------------
Name:
Title:
EXHIBIT C-4 to the
CREDIT AGREEMENT
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
_________, ___
Bank of America, N.A., as Administrative
Agent for the Lenders referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Dear Sirs:
The undersigned, Gannett Co., Inc. ("Gannett"), refers to the
Competitive Advance and Revolving Credit Agreement, dated as of _________, 2002
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"; terms defined therein being used herein are therein defined unless
otherwise defined), among Gannett, the several banks and other financial
institutions or entities from time to time parties thereto, Bank of America,
N.A., as Administrative Agent, JPMorgan Chase Bank and Bank One, NA, as
Co-Syndication Agents, and Barclays Bank PLC, as Documentation Agent.
In accordance with subsection 2.3(e) of the Credit Agreement,
we have received a summary of bids in connection with our Competitive Bid
Request dated _________, ___ and in accordance with subsection 2.3(f) of the
Credit Agreement, we hereby accept the following bids:
Principal Amount Fixed Rate/Margin Maturity Date Lender
---------------- ----------------- ------------- ------
$ [%]/[+/-.__%]
We hereby reject the following bids:
Principal Amount Fixed Rate/Margin Maturity Date Lender
---------------- ----------------- ------------- ------
$ [%]/[+/-.__%]
The $ should be deposited in Bank of America,
N.A. account number [ ] on [date].
2
Upon acceptance of any or all of the Loans offered by the
Lenders in response to this request, Gannett shall be deemed to have represented
and warranted that the conditions to lending specified in Article IV of the
Credit Agreement have been satisfied.
Very truly yours,
GANNETT CO., INC.
By:
----------------------------------
Name:
Title:
EXHIBIT D-1 to the
CREDIT AGREEMENT
FORM OF NEW LENDER SUPPLEMENT
SUPPLEMENT, dated _________________, to the Competitive
Advance and Revolving Credit Agreement, dated as of ________, 2002 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
terms defined therein being used herein are therein defined unless otherwise
defined), among Gannett Co., Inc., a Delaware corporation ("Gannett"), the
several banks and other financial institutions or entities from time to time
parties thereto (the "Lenders"), Bank of America, N.A., as Administrative Agent,
JPMorgan Chase Bank and Bank One, NA, as Co-Syndication Agents, and Barclays
Bank PLC, as Documentation Agent.
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in Section 2.1(e)
thereof that any bank, financial institution or other entity may become a party
to the Credit Agreement in connection with any transaction described in Section
2.1(d) thereof with the consent of Gannett and the Administrative Agent (which
consent, in the case of the Administrative Agent, shall not be unreasonably
withheld) by executing and delivering to Gannett and the Administrative Agent a
supplement to the Credit Agreement in substantially the form of this Supplement;
and
WHEREAS, the undersigned now desires to become a party to the
Credit Agreement;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by the provisions of the
Credit Agreement, and agrees that it shall, on the date this Supplement
is accepted by Gannett and the Administrative Agent, become a Lender
for all purposes of the Credit Agreement to the same extent as if
originally a party thereto, with [364-Day Commitments of
$________________] [Five-Year Commitments of $__________________]
[Incremental Facility Commitments of $____________].
2. The undersigned (a) represents and warrants that it is
legally authorized to enter into this Supplement; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of
the financial statements referred to in Section 3.2 thereof and such
other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Supplement; (c)
agrees that it has made and will, independently and without reliance
upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under the Credit Agreement or any instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement or any
instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together
with such powers as are incidental thereto; and (e) agrees that it will
be bound by the provisions of the Credit Agreement and will perform in
accordance with its terms all the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender
including, without limitation, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to
Section 2.15(d) of the Credit Agreement.
3. The undersigned's address for notices for the purposes of
the Credit Agreement is as follows:
-------------------------------------
-------------------------------------
-------------------------------------
IN WITNESS WHEREOF, the undersigned has caused this Supplement
to be executed and delivered by a duly authorized officer on the date first
above written.
[INSERT NAME OF LENDER]
By:
----------------------------------
Title:
Accepted this _____ day of
_________, ___.
GANNETT CO., INC.
By
--------------------------------
Title:
Accepted this _____ day of
_________, ___.
BANK OF AMERICA, N.A.,
as Administrative Agent
By
--------------------------------
Title:
EXHIBIT D-2 to the
CREDIT AGREEMENT
FORM OF INCREMENTAL FACILITY ACTIVATION NOTICE
To: BANK OF AMERICA, N.A.,
as Administrative Agent under the Credit Agreement referred to below
Reference is hereby made to the Competitive Advance and
Revolving Credit Agreement, dated as of _____________, 2002 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
terms defined therein being used herein are therein defined unless otherwise
defined), among Gannett Co., Inc., a Delaware corporation ("Gannett"), the
several banks and other financial institutions or entities from time to time
parties thereto (the "Lenders"), Bank of America, N.A., as Administrative Agent,
JPMorgan Chase Bank and Bank One, NA, as Co-Syndication Agents, and Barclays
Bank PLC, as Documentation Agent.
This notice is an Incremental Facility Activation Notice
referred to in the Credit Agreement, and Gannett and each of the Lenders party
hereto hereby notify you that:
1. Each Lender party hereto agrees to make or increase
the amount of its [364-Day Commitment] [Five-Year
Commitment] [Incremental Facility Commitment] as set
forth opposite such Lender's name below under the
caption "Incremental Facility Amount".
2. The Incremental Facility Closing Date is ______.
[3. The Incremental Facility Maturity Date is ____.]
GANNETT CO., INC.
By:
----------------------------------
Name:
Title:
Incremental Facility Amount [NAME OF LENDER]
$
By:
----------------------------------
Name:
Title:
CONSENTED TO:
BANK OF AMERICA, N.A.,
as Administrative Agent
By
-----------------------------
Name:
Title:
EXHIBIT E to the
CREDIT AGREEMENT
FORM OF EXEMPTION CERTIFICATE
Reference is made to the Competitive Advance and Revolving
Credit Agreement, dated as of ______________, 2002 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"; terms defined
therein being used herein are therein defined unless otherwise defined), among
Gannett Co., Inc., a Delaware corporation ("Gannett"), the several banks and
other financial institutions or entities from time to time parties thereto, Bank
of America, N.A., as Administrative Agent, JPMorgan Chase Bank and Bank One, NA,
as Co-Syndication Agents, and Barclays Bank PLC, as Documentation Agent. [Name
of Non-U.S. Person] (the "Lender") is providing this certificate pursuant to
subsection 2.15(d) of the Credit Agreement. The Lender hereby represents and
warrants that:
1. The Lender is the sole record and beneficial owner of the
Loans in respect of which it is providing this certificate.
2. The Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). In
this regard, the Lender represents and warrants that:
(a) the Lender is not subject to regulatory or
other legal requirements as a bank in any jurisdiction; and
(b) the Lender has not been treated as a bank
for purposes of any tax, securities law or other filing or submission made to
any governmental authority, any application made to a rating agency or
qualification for any exemption from tax, securities law or other legal
requirements.
3. The Lender meets all of the requirements under Code Section
871(a) or 881(c) to be eligible for a complete exemption from withholding of
taxes on interest payments made to it under the Credit Agreement (i.e., Gannett
will not be required to withhold any amounts under U.S. tax law with respect to
such interest payments), including without limitation that it is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code)
of Gannett and is not a controlled foreign corporation related to Gannett
(within the meaning of Section 864(d)(4) of the Code).
4. The Lender shall promptly notify Gannett and the
Administrative Agent if any of the representations and warranties made herein
are no longer true and correct.
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate as of the __day of ______________, ____.
[NAME OF LENDER]
By:
----------------------------------
Name:
Title:
EXHIBIT F to the
CREDIT AGREEMENT
FORM OF OPINION OF ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
[Letterhead of ▇▇▇▇▇ Peabody LLP]
[DATE]
To the Lenders parties to the Competitive Advance
and Revolving Credit Agreement dated as of
_____________, 2002 among Gannett, the Lenders,
the Administrative Agent, the Co-Syndication Agents
and the Distribution Agent
Ladies and Gentlemen:
We are counsel to Gannett Co., Inc., a Delaware corporation
("Gannett"), and as such we are familiar with the Competitive Advance and
Revolving Credit Agreement dated as of __________, 2002, among Gannett, the
several lenders from time to time parties thereto (the "Lenders"), Bank of
America, N.A., as Administrative Agent (the "Administrative Agent"), JPMorgan
Chase Bank and Bank One, NA, as Co-Syndication Agents, and Barclays Bank PLC, as
Documentation Agent (the "Credit Agreement"), relating to Gannett's borrowing of
initially up to $2,750,000,000. Capitalized terms defined in the Credit
Agreement are used herein with the respective meanings assigned to such terms in
the Credit Agreement.
In connection with this opinion, we have examined, among other
documents, an executed copy of the Credit Agreement and Gannett's Restated
Certificate of Incorporation, as amended, and By-laws, as amended. Subject to
the assumptions and qualifications contained herein, we also have examined
originals or copies, certified or otherwise identified to our satisfaction, of
such other documents, and made such investigations of law, as we have deemed
necessary or appropriate as a basis for the opinions expressed below. We also
have relied upon certificates and other documents from public officials.
In rendering the following opinions, we have assumed, without
investigation, the authenticity of any document or other instrument submitted to
us as an original, the conformity to the originals of any document or other
instrument submitted to us as a copy, the legal capacity of natural persons, and
the genuineness of all signatures on such originals or copies.
We express no opinion herein as to (i) any provisions of the Credit
Agreement which provide for indemnification, waiver or release to the extent
such provisions may be limited or rendered, unenforceable, in whole or in part,
by securities laws, criminal statutes or other laws or the policies underlying
such laws and by the effect of general rules of contract law that limit the
enforceability of provisions releasing, exculpating or exempting a party from,
or requiring indemnification for liability for action or inaction, to the extent
the action or inaction involves gross negligence, recklessness, willful
misconduct or unlawful conduct, or (ii) the waiver of inconvenient forum or any
claim that venue is improper or provisions relating to subject matter
jurisdiction of the courts set forth in the Credit Agreement.
The phrase "to our knowledge," when used herein, means that our opinion
is based solely on matters within the actual knowledge of attorneys in the firm
who have been involved in the preparation of this opinion and the Credit
Agreement.
2
Members of our firm involved in the preparation of this opinion are
licensed to practice law in the State of New York and, we do not purport to be
experts on, or to express any opinion herein concerning, any law other than the
laws of the State of New York, the General Corporation Law of the State of
Delaware and the Federal law of the United States.
Based upon and subject to the foregoing and the other assumptions and
qualifications contained herein, we are of the opinion that:
1. Gannett is a corporation duly organized, validly existing and in
good standing under the laws of Delaware and is duly qualified to do business as
a foreign corporation, and Gannett is in good standing in all states in which it
owns substantial properties or in which it conducts substantial business or in
which qualification is necessary in order that the business or financial
condition of Gannett and its Subsidiaries, taken as a whole, be not Materially
adversely affected.
2. To our knowledge, there are no actions, suits or proceedings pending
or threatened against or affecting Gannett or any of its Subsidiaries in or
before any court or foreign or domestic government instrumentality, and neither
Gannett nor any of its Subsidiaries are in default in respect of any order of
any such court or governmental instrumentality which, in any such case, in the
opinion of Gannett, are Material.
3. Neither the execution and delivery of the Credit Agreement, the
consummation of the transactions therein contemplated nor compliance with the
terms and provisions thereof will conflict with or result in breach of any of
the provisions of the Restated Certificate of Incorporation, as amended, or the
By-Laws, as amended, of Gannett or, to our knowledge and based on reasonable
inquiries made of corporate officers of any law or of any regulation or order of
any court or governmental instrumentality or any material agreement or
instrument by which Gannett is bound or constitute a default thereunder or
result in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever not permitted under Section 6.1 of the Credit Agreement upon
any of the property of Gannett.
4. The execution and delivery of the Credit Agreement and the making of
all Borrowings contemplated or permitted by the provisions thereof have been
duly authorized by all necessary corporate action on the part of Gannett; and
the Credit Agreement has been duly and validly executed and delivered by
Gannett. The Credit Agreement constitutes a valid and legally binding agreement
of Gannett enforceable in accordance with its terms and the Borrowings when duly
made, will constitute valid and legally binding obligations of Gannett
enforceable in accordance with the terms thereof and of the Credit Agreement,
except as limited by applicable bankruptcy, insolvency, moratorium,
reorganization or other laws, judicial decisions or principles of equity
relating to or affecting the enforcement of creditors' rights or contractual
obligations generally.
In rendering the foregoing opinions, we have relied upon the
certificates of officers of Gannett as to (i) the nature and location of the
property of Gannett, (ii) the agreements and instruments to which Gannett and/or
its Subsidiaries is a party which are material, and (iii) the existence of
Material pending or threatened actions, suits or proceedings or orders of any
court or governmental instrumentality and other information from such officers.
We have not independently investigated or verified the information represented
in such certificates or so provided to us and do not opine as to the accuracy
thereof.
Very truly yours,
EXHIBIT G to the
CREDIT AGREEMENT
FORM OF COMPLIANCE CERTIFICATE
[USE FOR QUARTERLY REPORT] The undersigned, an officer of Gannett Co., Inc.
("Gannett"), has executed this Certificate on behalf of
Gannett pursuant to Section 5.1(a) of the Competitive
Advance and Revolving Credit Agreement, dated as of
__________, 2002 (the "Agreement"), among Gannett, the
several banks and other financial institutions or entities
from time to time parties thereto, Bank of America, N.A., as
Administrative Agent, JPMorgan Chase Bank and Bank One, NA,
as Co-Syndication Agents, and Barclays Bank PLC, as
Documentation Agent. The undersigned has reviewed Gannett's
activities during the preceding fiscal quarter, which has
consisted solely of a review of the unaudited consolidated
financial statements of Gannett for said fiscal quarter.
[USE FOR ANNUAL REPORT] The undersigned, an officer of Gannett Co., Inc. ("Gannett")
has executed this Certificate on behalf of Gannett pursuant
to Section 5.1(b) of the Competitive Advance and Revolving
Credit Agreement, dated as of _____________, 2002 (the
"Agreement"), among Gannett, the several banks and other
financial institutions or entities from time to time parties
thereto, Bank of America, N.A., as Administrative Agent,
JPMorgan Chase Bank and Bank One, NA, as Co-Syndication
Agents, and Barclays Bank PLC, as Documentation Agent. The
undersigned has reviewed the activities of Gannett and its
Subsidiaries during the preceding fiscal year, which has
consisted solely of a review of the audited consolidated
financial statements of Gannett for said fiscal year.
[USE FOR QUARTERLY AND
ANNUAL REPORT] At __________ the Total Shareholders' Equity is __________.
At __________ the Interest Coverage Ratio for purposes of
Section 6.4 of the Agreement is __________ based on the
following: Consolidated EBITDA of __________ and Adjusted
Consolidated Total Interest Expense of ___________.
The undersigned hereby CERTIFIES THAT, based upon the review described
above and a review of the Agreement, nothing came to the undersigned's attention
which caused the undersigned to believe that (i) Gannett has not fulfilled all
of its obligations under the Agreement or (ii) there has occurred an Event of
Default as defined in said Agreement, or any condition, event or act, which with
notice or lapse of time or both, would constitute an Event of Default, which has
not been cured pursuant to the provisions of the Agreement.
GANNETT CO., INC.
By:
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Name:
Title: