$3,000,000,000
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,
and
THE CHASE MANHATTAN BANK,
as Syndication Agent
Dated as of July 28, 2000
------------
BANC OF AMERICA SECURITIES LLC
and
CHASE SECURITIES INC.,
as Joint Lead Arrangers and Joint Book Managers
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS 1
SECTION 2 AMOUNT AND TERMS OF THE FACILITIES 6
Section 2.1 Revolving Credit Commitments 6
Section 2.2 Procedure for Revolving Credit Borrowing 6
Section 2.3 Competitive Borrowings . 7
Section 2.4 Termination or Reduction of Commitments 9
Section 2.5 Prepayments. . . . . . 10
Section 2.6 Conversion and Continuation Options 10
Section 2.7 Minimum Amounts of Eurodollar Borrowings 10
Section 2.8 Repayment of Loans; Evidence of Debt 10
Section 2.9 Interest Rates and Payment Dates 11
Section 2.10 Facility Fee . . . . . 12
Section 2.11 Computation of Interest and Fees 13
Section 2.12 Inability to Determine Interest Rate 13
Section 2.13 Pro Rata Treatment and Payments 13
Section 2.14 Illegality . . . . . . 14
Section 2.15 Increased Costs. . . . 14
Section 2.16 Taxes. . . . . . . . . 15
Section 2.17 Indemnity. . . . . . . 17
Section 2.18 Notice of Amounts Payable; Relocation of
Lending Office; Mandatory Assignment 17
SECTION 3 REPRESENTATIONS AND WARRANTIES. 18
Section 3.1 Organization; Powers . 18
Section 3.2 Financial Condition; No Material Adverse
Effect . . . . . . . . . . . . . 18
Section 3.3 Properties . . . . . . 18
Section 3.4 Litigation . . . . . . 19
Section 3.5 No Conflicts . . . . . 19
Section 3.6 Taxes. . . . . . . . . 19
Section 3.7 Authorization; Enforceability 19
Section 3.8 Environmental Matters. 19
SECTION 4 CONDITIONS. . . . . . . . . . . 19
SECTION 5 AFFIRMATIVE COVENANTS . . . . . 20
Section 5.1 Financial Statements and Other Information 20
Section 5.2 Payment of Obligations 21
Section 5.3 Books and Records; Inspection Rights 21
Section 5.4 Notices of Material Events 21
Section 5.5 Existence; Conduct of Business 21
Section 5.6 Maintenance of Properties; Insurance 21
Section 5.7 Compliance with Laws . 21
SECTION 6 NEGATIVE COVENANTS. . . . . . . 22
Section 6.1 Liens. . . . . . . . . 22
Section 6.2 Fundamental Changes. . 22
Section 6.3 Shareholders' Equity . 23
SECTION 7 EVENTS OF DEFAULT . . . . . . . 23
SECTION 8 THE ADMINISTRATIVE AGENT. . . . 24
Section 8.1 Appointment. . . . . . 24
Section 8.2 Delegation of Duties . 25
Section 8.3 Exculpatory Provisions 25
Section 8.4 Reliance by Administrative Agent 25
Section 8.5 Notice of Default. . . 25
Section 8.6 Non-Reliance on Administrative Agent and
Other Lenders. . . . . . . . . . 26
Section 8.7 Indemnification. . . . 26
Section 8.8 Agent in Its Individual Capacity 27
Section 8.9 Successor Administrative Agent 27
SECTION 9 MISCELLANEOUS . . . . . . . . . 27
Section 9.1 Amendments and Waivers 27
Section 9.2 Notices. . . . . . . . 28
Section 9.3 No Waiver; Cumulative Remedies 29
Section 9.4 Survival of Representations and Warranties 29
Section 9.5 Payment of Expenses and Taxes 29
Section 9.6 Successors and Assigns; Participations and
Assignments. . . . . . . . . . . 30
Section 9.7 Adjustments; Set-off . 32
Section 9.8 Counterparts . . . . . 33
Section 9.9 Severability . . . . . 33
Section 9.10 Integration. . . . . . 33
Section 9.11 GOVERNING LAW. . . . . 33
Section 9.12 Submission To Jurisdiction; Waivers 33
Section 9.13 Acknowledgements . . . 34
Section 9.14 Confidentiality. . . . 34
<PAGE>
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 Nixon Peabody LLP
G Form of Compliance Certificate
<PAGE>
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY,
dated as of July 28, 2000, 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"), and THE CHASE MANHATTAN BANK, as syndication agent (the
"Syndication 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.
"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:
Facility Credit Status I Credit Status 2
364-Day Facility 15 Basis Points 19 Basis Points
Five-Year Facility 13 Basis Points 17 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.
"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.
"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": either of Credit Status 1 or
Credit Status 2.
"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 Moody's of Gannett's
senior unsecured long-term debt of at least A2. In determining
whether Credit Status 1 or Credit Status 2 shall apply in any
circumstance, if the applicable ratings by S&P and Moody's
differ, the higher of the two ratings will be determinative,
unless the applicable ratings by S&P and Moody's 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 Moody's, then that single rating shall be determinative.
"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 A- or lower or a rating by Moody's of Gannett's
senior unsecured long-term debt of A3 or lower. In determining
whether Credit Status 1 or Credit Status 2 shall apply in any
circumstance, if the applicable ratings by S&P and Moody's
differ, the higher of the two ratings will be determinative,
unless the applicable ratings by S&P and Moody's 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 Moody's, then that single rating shall be determinative.
"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 of this Agreement.
"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
Jones 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.
"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" shall mean each day on
which the Commitment Utilization Percentage exceeds 50%.
"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.
"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 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
(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 (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 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.
"Moody's": Moody's Investors Service, Inc. and
its successors.
"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.
"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.
"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.
"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.
"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.
(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 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, 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 $50,000,000. 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 12:00 Noon, 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) one Business Day
prior to 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 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 11:00
A.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 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.
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
(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. Notwithstanding
anything to the contrary contained herein, if any reduction is
made to the Commitments within 90 days of the Effective Date and
at a time when either of Bank of America, N.A. or The Chase
Manhattan Bank holds a combination of 364-Day Commitments and
Five-Year Commitments in excess of $400,000,000, such reduction
shall be applied (on a ratable basis) first to reduce the
combined amount of the 364-Day Commitments and Five-Year
Commitments of either or both of Bank of America, N.A. and The
Chase Manhattan Bank, as the case may be, to an aggregate amount,
in each case, not less than $400,000,000, and any prepayment of
the Loans during any such time made in connection with the
reduction of the Commitments will be similarly applied.
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.
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 to (i)
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 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 be due and payable in full on the date (the "Extended Date")
which is two years 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.
(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.
(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 (a) for each day that Gannett has Credit
Status 1, .0500% of the aggregate 364-Day Commitments on such day
and (b) for each day that Gannett has Credit Status 2, .0700% 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.
(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 (a) for each day that Gannett has Credit Status 1,
.0700% of the aggregate Five-Year Commitments on such day and (b)
for each day that Gannett has Credit Status 2, .0900% 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 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
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 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 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-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 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 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. Gannett has furnished to each of the Lenders
copies of its Annual Report for 1999, containing copies of its
consolidated balance sheet as of December 26, 1999 and the
related statements of consolidated income and changes in
shareholders' equity and cash flows for 1999, all reported on by
PricewaterhouseCoopers LLP, independent public accountants, and
copies of its Quarterly Report on Form 10-Q for the period ending
March 26, 2000. The financial statements contained in such
Annual and Quarterly Reports (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 March 26, 2000
not reflected in the consolidated balance sheet as of March 26,
2000 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.
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 March 26,
2000 referred to in Section 3.2 and all other property acquired
by them, respectively after March 26, 2000 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,
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 March 26, 2000,
there has been no development of 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.
(c) On or prior to the date of the first
Borrowing hereunder, there shall have been delivered to each
Lender an opinion from Nixon Peabody 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 (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.
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 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
(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. 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 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
Moody's.
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 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.
ARTICLE VII
Events of Default.
Section 7.1 Events of Default. The following
are Events of Default:
(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;
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.
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.
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. 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 Syndication Agent. Notwithstanding
any provision to the contrary elsewhere in this Agreement, the
Syndication Agent shall not 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 the Syndication 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 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 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. 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 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: 1100 Wilson Blvd.
Arlington, VA 22234
Attention:
Treasurer and Vice
President, Investor Relations
Telecopy: 703-558-3930
Telephone: 703-284-6918
The Administrative Agent: Bank of America, N.A.
901 Main Street, 64th Floor
Dallas, TX 75202-3748
Attention: Pamela Kurtzman
Telecopy: 214-209-9390
Telephone: 214-209-0997
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, 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.
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 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 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
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 sue in any
other jurisdiction.
Section 9.13 Acknowledgements. Gannett hereby
acknowledges that:
(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.
/s/Gracia C. Martore
By:__________________________
Name: Gracia C. Martore
Title: Treasurer and Vice
President/Investor Relations
BANK OF AMERICA, N.A., as
Administrative Agent
/s/Pamela S. Kurtzman
By:__________________________
Name: Pamela S. Kurtzman
Title: Principal
THE CHASE MANHATTAN BANK, as
Syndication Agent
/s/Robert Anastasio
By:__________________________
Name: Robert Anastasio
Title: Vice President
