EXHIBIT 10.3
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$1,450,000,000
FIVE-YEAR CREDIT AGREEMENT
among
INFINITY BROADCASTING CORPORATION,
THE SUBSIDIARY BORROWERS PARTIES HERETO,
THE LENDERS NAMED HEREIN,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
FLEET NATIONAL BANK and BANK OF AMERICA, N.A.,
as Co-Syndication Agents
and
BANK OF NEW YORK,
as Documentation Agent,
Dated as of May 3, 2000
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CHASE SECURITIES INC. and FLEETBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.,
as Joint Lead Arrangers and Joint Book Managers
BANK OF AMERICA, N.A. and BANK OF NEW YORK,
as Arrangers
TABLE OF CONTENTS
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Page
ARTICLE I.
DEFINITIONS......................................................................... 1
SECTION 1.1. Defined Terms.......................................................... 1
SECTION 1.2. Terms Generally........................................................ 17
ARTICLE II.
THE CREDITS......................................................................... 18
SECTION 2.1. Commitments............................................................ 18
SECTION 2.2. Revolving Credit Loans; Competitive Loans.............................. 18
SECTION 2.3. Competitive Bid Procedure.............................................. 18
SECTION 2.4. Revolving Credit Borrowing Procedure................................... 21
SECTION 2.5. Repayment of Loans..................................................... 21
SECTION 2.6. Swingline Loans........................................................ 21
SECTION 2.7. Letters of Credit...................................................... 24
SECTION 2.8. Conversion and Continuation Options.................................... 27
SECTION 2.9. Fees................................................................... 28
SECTION 2.10. Interest on Loans; Eurodollar Tranches; Etc........................... 29
SECTION 2.11. Default Interest...................................................... 30
SECTION 2.12. Alternate Rate of Interest............................................ 30
SECTION 2.13. Termination, Reduction and Increase of Commitments.................... 30
SECTION 2.14. Optional Prepayments of Revolving Credit Loans........................ 32
SECTION 2.15. Reserve Requirements.................................................. 32
SECTION 2.16. Indemnity............................................................. 34
SECTION 2.17. Pro Rata Treatment; Funding Matters; Evidence of Debt................. 34
SECTION 2.18. Sharing of Setoffs.................................................... 35
SECTION 2.19. Payments.............................................................. 36
SECTION 2.20. Taxes................................................................. 36
SECTION 2.21. Termination or Assignment of Commitments Under Certain Circumstances.. 38
SECTION 2.22. Currency Equivalents.................................................. 38
SECTION 2.23. Judgment.............................................................. 39
ARTICLE III.
REPRESENTATIONS AND WARRANTIES...................................................... 40
SECTION 3.1. Corporate Existence.................................................... 40
SECTION 3.2. Financial Condition.................................................... 40
SECTION 3.3. Litigation............................................................. 40
SECTION 3.4. No Breach, etc......................................................... 41
SECTION 3.5. Corporate Action....................................................... 41
SECTION 3.6. Approvals.............................................................. 41
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SECTION 3.7. ERISA................................................................. 41
SECTION 3.8. Taxes................................................................. 41
SECTION 3.9. Investment Company Act................................................ 41
SECTION 3.10. Hazardous Materials.................................................. 42
SECTION 3.11. Material Subsidiaries................................................ 42
SECTION 3.12. No Material Misstatements............................................ 42
SECTION 3.13. Ownership of Property................................................ 42
SECTION 3.14. Intellectual Property................................................ 42
SECTION 3.15. FCC Matters.......................................................... 42
ARTICLE IV.
CONDITIONS OF EFFECTIVENESS AND LENDING............................................ 43
SECTION 4.1. Effectiveness......................................................... 43
SECTION 4.2. Initial Loans to Subsidiary Borrowers................................. 43
SECTION 4.3. All Credit Events..................................................... 43
ARTICLE V.
COVENANTS.......................................................................... 44
SECTION 5.1. Financial Statements.................................................. 44
SECTION 5.2. Corporate Existence, Etc.............................................. 46
SECTION 5.3. Insurance............................................................. 47
SECTION 5.4. Prohibition of Fundamental Changes.................................... 47
SECTION 5.5. Limitation on Liens................................................... 48
SECTION 5.6. Limitation on Subsidiary Indebtedness................................. 49
SECTION 5.7. Consolidated Leverage Ratio........................................... 50
SECTION 5.8. Consolidated Coverage Ratio........................................... 50
SECTION 5.9. Use of Proceeds....................................................... 50
SECTION 5.10. Transactions with Affiliates......................................... 50
ARTICLE VI.
EVENTS OF DEFAULT.................................................................. 50
ARTICLE VII.
THE AGENTS......................................................................... 53
ARTICLE VIII.
GUARANTEE.......................................................................... 55
SECTION 8.1. Guarantee............................................................. 55
SECTION 8.2. No Subrogation, etc................................................... 55
SECTION 8.3. Amendments, etc. with respect to the Subsidiary Borrower Obligations.. 56
SECTION 8.4. Guarantee Absolute and Unconditional.................................. 56
SECTION 8.5. Reinstatement......................................................... 57
SECTION 8.6. Payments.............................................................. 57
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ARTICLE IX.
MISCELLANEOUS.............................................. 57
SECTION 9.1. Notices....................................... 57
SECTION 9.2. Survival of Agreement......................... 58
SECTION 9.3. Binding Effect................................ 58
SECTION 9.4. Successors and Assigns........................ 58
SECTION 9.5. Expenses; Indemnity........................... 61
SECTION 9.6. Right of Setoff............................... 62
SECTION 9.7. APPLICABLE LAW................................ 62
SECTION 9.8. Waivers; Amendment............................ 62
SECTION 9.9. Entire Agreement.............................. 63
SECTION 9.10. Waiver of Jury Trial......................... 63
SECTION 9.11. Severability................................. 63
SECTION 9.12. Counterparts................................. 63
SECTION 9.13. Headings..................................... 63
SECTION 9.14. Jurisdiction; Consent to Service of Process.. 63
SECTION 9.15. Confidentiality.............................. 64
EXHIBITS
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Exhibit A Administrative Questionnaire
Exhibit B-1 Form of Competitive Bid Request
Exhibit B-2 Form of Notice of Competitive Bid Request
Exhibit B-3 Form of Competitive Bid
Exhibit B-4 Form of Revolving Credit Borrowing Request
Exhibit B-5 Form of Swingline Borrowing Request
Exhibit B-6 Form of Notice of Designated Letter of Credit
Exhibit B-7 Form of Subsidiary Borrower Designation
Exhibit B-8 Form of Subsidiary Borrower Request
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Confidentiality Agreement
Exhibit E Form of Closing Certificate
Exhibit F Form of Issuing Lender Agreement
Exhibit G Form of New Lender Supplement
Exhibit H Form of Commitment Increase Letter
SCHEDULES
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Schedule 1.1 Commitments; Addresses for Notices
Schedule 3.11 Material Subsidiaries
Schedule 5.5(m) Certain Infinity Assets
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FIVE-YEAR CREDIT AGREEMENT entered into as of May 3, 2000, among
INFINITY BROADCASTING CORPORATION, a Delaware corporation ("Infinity"), each
Subsidiary Borrower (as herein defined); the lenders whose names appear on
Schedule 1.1 hereto or who subsequently become parties hereto as provided herein
(the "Lenders"); THE CHASE MANHATTAN BANK, a New York banking corporation
("Chase"), as administrative agent for the Lenders; FLEET NATIONAL BANK, a
national banking corporation, and BANK OF AMERICA, N.A., a national banking
association, each as co-syndication agent for the Lenders (in such capacity, the
"Co-Syndication Agents"); and BANK OF NEW YORK, a New York banking corporation,
as documentation agent for the Lenders (in such capacity, the "Documentation
Agent").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Infinity has requested that the Lenders provide extensions of
credit to it and to certain Subsidiary Borrowers to be used for general
corporate purposes (including, without limitation, acquisitions and commercial
paper backup), which extensions of credit shall enable the Borrowers to borrow
loans in an aggregate amount not to exceed $1.45 billion on a revolving credit
basis on and after the Closing Date (as herein defined) and prior to the
Revolving Credit Maturity Date (as herein defined); and
WHEREAS, the Lenders are willing to extend credit to the Borrowers on
the terms and subject to the conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR Loan" shall mean (a) any Revolving Credit Loan bearing interest
at a rate determined by reference to the Alternate Base Rate in accordance with
the provisions of Article II and (b) any ABR Swingline Loan.
"ABR Revolving Credit Loan" shall mean any Revolving Credit Loan which
is an ABR Loan.
"ABR Swingline Exposures" shall mean at any time the aggregate
principal amount at such time of the outstanding ABR Swingline Loans. The ABR
Swingline Exposure of any Lender at any time shall mean its Revolving Credit
Percentage of the aggregate ABR Swingline Exposures at such time.
"ABR Swingline Loan" shall have the meaning assigned to such term in
Section 2.6(a).
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"Absolute Rate Loan" shall mean any Competitive Loan bearing interest
at a fixed percentage rate per annum (expressed in the form of a decimal rounded
to no more than four decimal places) specified by the Lender making such Loan in
its Competitive Bid.
"Administrative Agent" shall mean Chase, together with its affiliates,
as an arranger of the Commitments and as the administrative agent for the
Lenders under this Agreement, and any successor thereto pursuant to Article VII.
"Administrative Agent Fee Letter" shall mean the Fee Letter with
respect to this Agreement between Infinity and the Administrative Agent, as
amended, supplemented or otherwise modified from time to time.
"Administrative Agent's Fees" shall have the meaning assigned to such
term in Section 2.9(c).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A hereto.
"Affiliate" shall mean, as to Infinity, any Person which directly or
indirectly controls, is under common control with or is controlled by Infinity.
As used in this definition, "control" (including, with correlative meanings,
"controlled by" and "under common control with") shall mean possession, directly
or indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise); provided that, in any event, any
Person which owns directly or indirectly 10% or more of the securities having
ordinary voting power for the election of directors or other governing body of a
corporation or 10% or more of the partnership or other ownership interests of
any other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person. Notwithstanding the
foregoing, (a) no individual shall be deemed to be an Affiliate of Infinity
solely by reason of his or her being an officer, director or employee of
Infinity or any of its Subsidiaries and (b) CBS or, following the consummation
of the Viacom Merger, Viacom and Infinity and their Subsidiaries shall not be
deemed to be Affiliates of each other, unless expressly stated to the contrary.
"Agents" shall mean the collective reference to the Administrative
Agent, the Joint Lead Arrangers and Joint Book Managers, the Arrangers, the
Documentation Agent and the Co-Syndication Agents.
"Aggregate LC Exposure" shall mean, at any time, the sum of (a) the
aggregate undrawn amount of all Letters of Credit outstanding at such time and
(b) the aggregate amount which has been drawn under Letters of Credit but for
which the applicable Issuing Lender or the Lenders, as the case may be, have not
been reimbursed by Infinity at such time.
"Agreement" shall mean this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Alternate Base Rate" shall mean, 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%. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by the Lender serving as the Administrative Agent as its prime rate in effect at
its principal office in New York City;
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each change in the Prime Rate shall be effective on the date such change is
publicly announced as effective; and "Federal Funds Effective Rate" shall mean,
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 the day of such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it. 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, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be the Prime Rate until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Commitment Fee Rate" shall mean the "Applicable Commitment
Fee Rate" determined in accordance with the Pricing Grid set forth in Annex I
hereto.
"Applicable Eurodollar Margin" shall mean the "Applicable Eurodollar
Margin" determined in accordance with the Pricing Grid set forth in Annex I
hereto.
"Applicable LC Fee Rate" shall mean (a) with respect to Financial
Letters of Credit, the "Applicable Financial LC Fee Rate" determined in
accordance with the Pricing Grid set forth in Annex I hereto and (b) with
respect to Non-Financial Letters of Credit, the "Applicable Non-Financial LC Fee
Rate" determined in accordance with the Pricing Grid set forth in Annex I
hereto.
"Applicable Utilization Fee Rate" shall mean the "Applicable
Utilization Fee Rate" determined in accordance with the Pricing Grid set forth
in Annex I hereto.
"Arrangers" shall mean Bank of America, N.A., a national banking
association, and Bank of New York, a New York banking corporation.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit C.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrower" shall mean, as applicable, Infinity or the relevant
Subsidiary Borrower.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for international business (including
dealings in Dollar deposits) in the London interbank market.
"Capital Lease Obligations" of any Person shall mean the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted
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for as capital leases on a balance sheet of such Person under GAAP and, for the
purposes of this Agreement, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with GAAP.
"Capital Stock" shall mean any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants or options to purchase any of the
foregoing.
"CBS" shall mean CBS Corporation, a Pennsylvania corporation.
"Change of Control" shall mean that CBS, or, following the
consummation of the Viacom Merger, Viacom, shall have ceased to hold, directly
or indirectly, beneficial ownership (within the meaning of Rules 13d-3 and 13d-5
promulgated by the SEC pursuant to the Exchange Act) of more than 50% of the
outstanding shares of voting and economic stock of Infinity.
"Chase" shall have the meaning assigned to such term in the preamble
to this Agreement.
"Closing Certificate" shall mean a certificate, substantially in the
form of Exhibit E.
"Closing Date" shall mean May 3, 2000.
"Code" shall mean the Internal Revenue Code of 1986, as the same may
be amended from time to time.
"Commitment" shall mean, with respect to each Lender, the commitment
of such Lender to make Revolving Credit Loans pursuant to Section 2.1, to make
or refund ABR Swingline Loans pursuant to Section 2.6 and to issue or
participate in Letters of Credit pursuant to Section 2.7, as set forth on
Schedule 1.1, as such Lender's Commitment may be permanently terminated or
reduced from time to time pursuant to Section 2.13 or changed pursuant to
Section 9.4.
"Commitment Fee Calculation Amount" shall mean, as to any Lender at
any time, an amount equal to the excess, if any, of (a) such Lender's Commitment
over (b) the sum of (i) the aggregate principal amount of all Revolving Credit
Loans made by such Lender then outstanding, (ii) such Lender's LC Exposure at
such time and (iii), in the case of each Swingline Lender, the aggregate
principal amount of all Quoted Swingline Loans made by such Swingline Lender
then outstanding.
"Commitment Fees" shall mean all fees payable pursuant to Section
2.9(a).
"Commitment Increase Date" shall have the meaning assigned to such
term in Section 2.13(d).
"Commitment Increase Letter" shall have the meaning assigned to such
term in Section 2.13(d) and shall be substantially in the form of Exhibit H.
"Commitment Utilization Percentage" shall mean on any day the
percentage equivalent to a fraction (a) the numerator of which is the sum of the
aggregate outstanding principal amount of Revolving Credit Loans, including the
aggregate outstanding principal amount of Letters of Credit, Swingline Loans and
Competitive Loans, and (b) the denominator of which is the Total Commitment (or,
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on any day after termination of the Commitments, the Total Commitment in effect
immediately preceding such termination).
"Communications Act" shall mean the Communications Act of 1934, as
amended.
"Competitive Bid" shall mean an offer to make a Competitive Loan
pursuant to Section 2.3.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made
pursuant to Section 2.3(b), (a) in the case of a Eurodollar Competitive Loan,
the Margin, and (b) in the case of an Absolute Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to
Section 2.3 in the form of Exhibit B-1.
"Competitive Loan" shall mean a Loan from a Lender to a Borrower
pursuant to the bidding procedure described in Section 2.3. Each Competitive
Loan shall be a Eurodollar Competitive Loan or an Absolute Rate Loan and,
subject to Section 2.3(a), may be denominated in Dollars or a Foreign Currency.
"Compliance Certificate" shall have the meaning assigned to such term
in Section 5.1.
"Confidential Information" shall have the meaning assigned to such
term in Section 9.15(a).
"Confidentiality Agreement" shall mean a confidentiality agreement
substantially in the form of Exhibit D, with such changes as Infinity may
approve.
"Consolidated Coverage Ratio" shall mean, for any period, the ratio of
(a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
such period.
"Consolidated EBITDA" shall mean, with respect to Infinity and its
Consolidated Subsidiaries for any period, operating profit (loss), plus other
income (loss), plus interest income, plus depreciation and amortization
(excluding amortization related to programming rights), excluding (a) gains
(losses) on sales of assets (except (I) gains (losses) on sales of inventory
sold in the ordinary course of business and (II) gains (losses) on sales of
other assets if such gains (losses) are less than $10,000,000 individually and
less than $50,000,000 in the aggregate during such period), and (b) other non-
cash items (including (i) provisions for losses and additions to valuation
allowances, (ii) provisions for restructuring, litigation and environmental
reserves and losses on the Disposition of businesses and (iii) pension
settlement charges), in each case determined for such period on a basis
consistent with that reported in Infinity's Form 10-K for the fiscal year ended
December 31, 1999 filed with the SEC, minus cash payments made during such
period in respect of non-cash charges taken during any previous period
(excluding cash payments in respect of non-cash charges taken prior to December
31, 1999).
"Consolidated Interest Expense" shall mean, for any period, the gross
interest expense of Infinity and its Consolidated Subsidiaries for such period,
computed and consolidated in accordance with GAAP, but excluding the
amortization of deferred financing charges for such period.
"Consolidated Leverage Ratio" shall mean the ratio of Consolidated
Total Indebtedness to Consolidated Total Capitalization.
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"Consolidated Net Worth" shall mean, at a particular date, all amounts
which would be included under shareholders' equity on a consolidated balance
sheet of Infinity and its Consolidated Subsidiaries determined on a consolidated
basis in accordance with GAAP.
"Consolidated Subsidiary" shall mean, as to any Person, each
Subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which shall be consolidated with the
financial statements of such Person in accordance with GAAP.
"Consolidated Total Capitalization" shall mean, at a particular date,
the sum of (a) Consolidated Net Worth plus (b) Consolidated Total Indebtedness
as at such date.
"Consolidated Total Indebtedness" shall mean all Indebtedness of
Infinity and its Consolidated Subsidiaries (excluding Indebtedness of Infinity
owing to any of its Consolidated Subsidiaries or Indebtedness of any
Consolidated Subsidiary of Infinity owing to Infinity or any other Consolidated
Subsidiary of Infinity), as determined on a consolidated basis in accordance
with GAAP.
"Co-Syndication Agents" shall have the meaning assigned to such term
in the preamble hereto.
"Credit Event" shall mean the making of any Loan or the issuance of
any Letter of Credit hereunder (including the designation of a Designated Letter
of Credit as a "Letter of Credit" hereunder). It is understood that conversions
and continuations pursuant to Section 2.8 do not constitute "Credit Events".
"Debt Rating" shall mean the rating applicable to Infinity's senior,
unsecured, non-credit-enhanced long-term indebtedness for borrowed money, as
assigned by either Rating Agency.
"Default" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
"Designated Letters of Credit" shall mean each letter of credit issued
by an Issuing Lender that (a) is not a Letter of Credit hereunder at the time of
its issuance and (b) is designated on or after the Closing Date by Infinity,
with the consent of such Issuing Lender, as a "Letter of Credit" hereunder by
written notice to the Administrative Agent in the form of Exhibit B-6.
"Disposition" shall mean, with respect to any Property, any sale,
lease, assignment, conveyance, transfer or other disposition thereof; and the
terms "Dispose" and "Disposed of" shall have correlative meanings.
"Documentation Agent" shall have the meaning assigned to such term in
the preamble hereto.
"Dollars" or "$" shall mean lawful money of the United States of
America.
"Environmental Laws" shall mean 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, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment, including, without limitation, ambient air, surface
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water, ground water or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, chemicals or industrial, toxic or
hazardous substances or wastes.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" shall mean, with respect to Infinity, any trade or
business (whether or not incorporated) that is a member of a group of which
Infinity is a member and which is treated as a single employer under Section 414
of the Code.
"Eurodollar Competitive Loan" shall mean any Competitive Loan which is
a Eurodollar Loan.
"Eurodollar Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" shall mean, with respect to an Interest Period
pertaining to any Eurodollar Loan, the rate of interest determined on the basis
of the rate for deposits in Dollars or the relevant Foreign Currency, as the
case may be, for a period equal to such Interest Period commencing on the first
day of such Interest Period appearing on Page 3750 (or, in the case of any
Foreign Currency, the applicable page) 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 such page of the Telerate Screen
(or otherwise on the Telerate Service), the "Eurodollar Rate" shall instead be
the interest rate per annum (rounded upwards, if necessary, to the next 1/16 of
1%) equal to the average of the rates at which deposits in Dollars or the
relevant Foreign Currency, as the case may be, approximately equal in principal
amount to (a) in the case of a Eurodollar Tranche, the portion of such
Eurodollar Tranche of the Lender serving as Administrative Agent and (b) in the
case of a Eurodollar Competitive Loan, a principal amount that would have been
the portion of such Loan of the Lender serving as the Administrative Agent had
such Loan been a Eurodollar Revolving Credit Loan, and for a maturity comparable
to such Interest Period, are offered by the principal London offices of the
Reference Banks (or, if any Reference Bank does not at the time maintain a
London office, the principal London office of any affiliate of such Reference
Bank) for immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Revolving Credit Loan" shall mean any Revolving Credit
Loan which is a Eurodollar Loan.
"Eurodollar Tranche" shall mean the collective reference to Eurodollar
Revolving Credit Loans made by the Lenders, the then current Interest Periods
with respect to all of which begin on the same date and end on the same later
date (whether or not such Loans shall originally have been made on the same
day).
"Event of Default" shall have the meaning assigned to such term in
Article VI; provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Exchange Act Report" shall have the meaning assigned to such term in
Section 3.3.
"Excess Utilization Day" shall mean each day (a) which is during any
consecutive period of more than 91 days during each of which the Commitment
Utilization Percentage exceeds 33 1/3%, (b)
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which is after the 91st day of such period and (c) on which the Commitment
Utilization Percentage exceeds 33 1/3%.
"Excluded Indebtedness" shall mean (a) Indebtedness of any Person
which is acquired by Infinity or any of its Subsidiaries after the Original
Closing Date, which Indebtedness was outstanding prior to the date of
acquisition of such Person and was not created in anticipation thereof, (b) any
Indebtedness owing by Infinity or any of its Subsidiaries to Infinity or any of
its Subsidiaries (including any intercompany Indebtedness created by the
declaration of a note payable dividend by any Subsidiary to Infinity or any of
its other Subsidiaries) and (c) Specified Section 5.5(n) Indebtedness.
"Existing CBS Credit Agreement"shall mean the Amended and Restated
Credit Agreement, dated as of December 10, 1999, as amended, modified or
supplemented from time to time, among CBS, as borrower, and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as administrative agent.
"Existing Credit Agreements" shall mean (a) the Existing CBS Credit
Agreement and (b) the Existing Infinity Credit Agreement.
"Existing Infinity Credit Agreement" shall mean the Credit Agreement,
dated as of December 10, 1999, as amended, modified or supplemented from time to
time, among Infinity, as borrower, CBS, as guarantor, and ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as administrative agent.
"Facility Exposure" shall mean, with respect to any Lender, the sum of
(a) the Outstanding Revolving Extensions of Credit of such Lender, (b) the
aggregate outstanding principal amount of any Competitive Loans made by such
Lender and (c) in the case of a Swingline Lender, the aggregate outstanding
principal amount of any Quoted Swingline Loans made by such Swingline Lender.
"FCC" shall mean the Federal Communications Commission.
"FCC Licenses" shall mean, with respect to Infinity or any of its
Subsidiaries, any radio, television or other license, permit, certificate of
compliance or authorization issued by the FCC and required for the operation of
its respective radio and television broadcast stations.
"Federal Funds Effective Rate" shall have the meaning assigned to such
term in the definition of "Alternate Base Rate".
"Fees" shall mean the Commitment Fees, the Administrative Agent's
Fees, the Issuing Lender Fees, the LC Fees and the Utilization Fees.
"Financial Covenants" shall have the meaning assigned to such term in
Section 1.2(b).
"Financial Letter of Credit" shall mean any Letter of Credit that, as
determined by the Administrative Agent, (a) supports a financial obligation and
(b) qualifies for the 100% credit conversion factor under the applicable Bank
for International Settlements guidelines.
"Financial Officer" of any corporation shall mean its Chief Financial
Officer, its Vice President and Treasurer or its Vice President and Chief
Accounting Officer or, in each case, any comparable officer or any Person
designated by any such officer.
9
"Foreign Currency" shall mean any currency other than Dollars which is
readily transferable and readily convertible by the relevant Lender or Issuing
Lender, as the case may be, into Dollars in the London interbank market.
"Foreign Exchange Rate" shall mean, with respect to any Foreign
Currency on a particular date, the rate at which such Foreign Currency may be
exchanged into Dollars, determined by reference to the selling rate in respect
of such Foreign Currency published in the "Wall Street Journal" on the relevant
date of determination. In the event that such rate is not, or ceases to be, so
published by the "Wall Street Journal", the "Foreign Exchange Rate" with respect
to such Foreign Currency shall be determined by reference to such other publicly
available source for determining exchange rates as may be agreed upon by the
Administrative Agent and Infinity or, in the absence of such agreement, such
"Foreign Exchange Rate" shall instead be the Administrative Agent's spot rate of
exchange in the interbank market where its foreign currency exchange operations
in respect of such Foreign Currency are then being conducted, at or about 12:00
noon, local time, at such date for the purchase of Dollars with such Foreign
Currency, for delivery two banking days later.
"GAAP" shall mean generally accepted accounting principles applied on
a consistent basis (but subject to changes approved by Infinity's independent
public accountants).
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Granting Bank" shall have to meaning specified in Section 9.4(i).
"Guarantee" of or by any Person shall mean any obligation, contingent
or otherwise, of such Person guaranteeing or entered into with the purpose of
guaranteeing any Indebtedness of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
Person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase Property, securities or services for the purpose
of assuring the owner of such Indebtedness of the payment of such Indebtedness
or (c) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided,, however, that the term "Guarantee"
shall not include endorsements for collection or deposit, in either case in the
ordinary course of business.
"Indebtedness" of any Person shall mean, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d)
all obligations of such Person under conditional sale or other title retention
agreements relating to Property or assets purchased by such Person, (e) all
obligations of such Person issued or assumed as the deferred purchase price of
Property or services, (f) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on Property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations of such
Person and (i) all obligations of such Person as an account party in respect of
outstanding letters of credit (whether or not drawn) and bankers' acceptances;
provided,, however, that Indebtedness shall not include (i) trade accounts
payable arising in the ordinary course of business, (ii) deferred compensation,
(iii) any Indebtedness of such Person to the extent (A) such Indebtedness does
not appear on the financial
10
statements of such Person, (B) such Indebtedness is recourse only to certain
assets of such Person and (C) the assets to which such Indebtedness is recourse
only appear on the financial statements of such Person net of such Indebtedness
or (iv) obligations (not constituting obligations for borrowed money)
specifically with respect to the production, distribution and acquisition of
television and other programming rights or talent; and provided, further, that
the amount of any Indebtedness described in clause (f) above shall be the lower
of the amount of the obligation or the fair market value of the collateral
securing such obligation. The Indebtedness of any Person shall include the
Indebtedness of any partnership in which such Person is a general partner, which
Indebtedness is recourse to such general partner.
"Indebtedness for Borrowed Money" shall mean Indebtedness of the type
described in clause (a) or (b) of the definition of "Indebtedness" and any
Guarantee thereof.
"Infinity" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Information" shall have the meaning assigned to such term in Section
3.12.
"Intellectual Property" shall mean the collective reference to
patents, trademarks (registered or unregistered), trade names, service marks,
assumed names, copyrights, technology, know-how and processes.
"Interest Payment Date" shall mean (a) with respect to any Eurodollar
Loan or Absolute Rate Loan, the last day of the Interest Period applicable
thereto and, in the case of a Eurodollar Loan with an Interest Period of more
than three months' duration or an Absolute Rate Loan with an Interest Period of
more than 90 days' duration, each day that would have been an Interest Payment
Date for such Loan had successive Interest Periods of three months' duration or
90 days' duration, as the case may be, been applicable to such Loan and, in
addition, the date of any conversion of any Eurodollar Revolving Credit Loan to
an ABR Loan, the date of repayment or prepayment of any Eurodollar Loan and the
applicable Maturity Date; (b) with respect to any ABR Loan (other than an ABR
Swingline Loan which is not an Unrefunded Swingline Loan), the last day of each
March, June, September and December and the applicable Maturity Date; (c) with
respect to any ABR Swingline Loan (other than an Unrefunded Swingline Loan), the
earlier of (i) the day that is five Business Days after such Loan is made and
(ii) the Revolving Credit Maturity Date and (d) with respect to any Quoted
Swingline Loan, the date established as such by the relevant Swingline Borrower
and the relevant Swingline Lender prior to the making thereof (but in any event
no later than the Revolving Credit Maturity Date).
"Interest Period" shall mean (a) as to any Eurodollar Loan, the period
commencing on the borrowing date or conversion date of such Loan, or on the last
day of the immediately preceding Interest Period applicable to such Loan, as the
case may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 7
days (subject to the prior consent of each Lender) or 1, 2, 3 or 6 months or
(subject to the prior consent of each Lender) 9 or 12 months thereafter, as the
relevant Borrower may elect, and (b) as to any Absolute Rate Loan, the period
commencing on the date of such Loan and ending on the date specified in the
Competitive Bids in which the offer to make such Absolute Rate Loan was
extended; provided, however, that (i) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of Eurodollar Loans only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii)
notwithstanding anything to the contrary herein, no Borrower may select an
Interest
11
Period which would end after the Maturity Date applicable to the relevant Loan.
Interest shall accrue from and including that first day of an Interest Period to
but excluding the last day of such Interest Period.
"Interim Certificate" shall have the meaning assigned to such term in
Annex I hereto.
"Issuing Lender" shall mean any Lender designated as an Issuing Lender
in an Issuing Lender Agreement executed by such Lender, Infinity and the
Administrative Agent; provided, that the Issuing Lender may, in its discretion,
arrange for one or more Letters of Credit to be issued by any of its Affiliates
(in which case the term "Issuing Lender" shall include such Affiliate with
respect to Letters of Credit issued by such Affiliate).
"Issuing Lender Agreement" shall mean an agreement, substantially in
the form of Exhibit F, executed by a Lender, Infinity, and the Administrative
Agent pursuant to which such Lender agrees to become an Issuing Lender
hereunder.
"Issuing Lender Fees" shall mean, as to any Issuing Lender, the fees
set forth in the applicable Issuing Lender Agreement.
"LC Disbursement" shall mean any payment or disbursement made by an
Issuing Lender under or pursuant to a Letter of Credit.
"LC Exposure" shall mean, as to each Lender, such Lender's Revolving
Credit Percentage of the Aggregate LC Exposure.
"LC Fee" shall have the meaning assigned such term in Section 2.9(b).
"Lead Arrangers" shall mean Chase Securities Inc., a New York
corporation, and FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc., a national banking
corporation.
"Lenders" shall have the meaning assigned to such term in the preamble
to this Agreement.
"Letters of Credit" shall mean letters of credit or bank guarantees
issued by an Issuing Lender for the account of Infinity pursuant to Section
2.7(including any Designated Letters of Credit).
"Lien" shall mean, with respect to any asset or Property, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset or Property and (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention agreement
relating to such asset or Property.
"Loan" shall mean any loan made by a Lender hereunder.
"Margin" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal rounded to no
more than four places) 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.
"Margin Stock" shall have the meaning assigned to such term under
Regulation U.
12
"Material Acquisition" shall mean any acquisition of Property or
series of related acquisitions of Property (including by way of merger) which
(a) constitutes assets comprising all or substantially all of an operating unit
of a business or constitutes all or substantially all of the common stock of a
Person and (b) involves the payment of consideration by Infinity and its
Subsidiaries (valued at the initial principal amount thereof in the case of non-
cash consideration consisting of notes or other debt securities and valued at
fair market value in the case of other non-cash consideration) in excess of
$50,000,000.
"Material Adverse Effect" shall mean (a) a material adverse effect on
the Property, business, results of operations or financial condition of Infinity
and its Subsidiaries taken as a whole or (b) material impairment of the ability
of Infinity to perform any of its obligations under this Agreement.
"Material Disposition" shall mean any Disposition of Property or
series of related Dispositions of Property which yields gross proceeds to
Infinity or any of its Subsidiaries (valued at the initial principal amount
thereof in the case of non-cash proceeds consisting of notes or other debt
securities and valued at fair market value in the case of other non-cash
proceeds) in excess of $50,000,000.
"Material Subsidiary" shall mean any Subsidiary of Infinity except for
Subsidiaries which in the aggregate would not constitute a significant
subsidiary under Regulation S-X of the SEC; provided, that each Subsidiary
Borrower shall in any event constitute a Material Subsidiary.
"Maturity Date" shall mean (a) in the case of the Revolving Credit
Loans and the ABR Swingline Loans, the Revolving Credit Maturity Date, (b) in
the case of the Quoted Swingline Loans, the date established as such by the
relevant Swingline Borrower and the relevant Swingline Lender prior to the
making thereof (but in any event no later than the Revolving Credit Maturity
Date) and (c) in the case of Competitive Loans, the last day of the Interest
Period applicable thereto, as specified in the related Competitive Bid Request.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 3(37) of ERISA to which contributions have been made by Infinity or any
ERISA Affiliate of Infinity and which is covered by Title IV of ERISA.
"Net Cash Proceeds" shall mean, in connection with any Disposition of
all or any material part of any business unit, the proceeds thereof in the form
of cash and cash equivalents (including any such proceeds received by way of
deferred payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Disposition, net of (i) attorneys' fees, accountants' fees,
investment banking fees and other customary fees and expenses actually incurred
in connection therewith, (ii) taxes paid or reasonably estimated to be payable
on a current basis as a result thereof (after taking into account any available
tax credits or deductions) and (iii) any cash purchase price adjustments paid in
connection therewith (but only as and when paid).
"New Lender" shall have the meaning assigned to such term in Section
2.13(d).
"New Lender Supplement" shall mean the agreement made pursuant to
Section 2.13(d) substantially in the form of Exhibit G.
13
"Non-Financial Letter of Credit" shall mean any Letter of Credit that
is not a Financial Letter of Credit.
"Non-U.S. Person" shall have the meaning assigned to such term in
Section 2.20(f).
"Original Closing Date" shall mean August 29, 1996.
"Outstanding Revolving Extensions of Credit" shall mean, as to any
Lender at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans made by such Lender then outstanding, (b)
such Lender's LC Exposure at such time and (c) such Lender's ABR Swingline
Exposure at such time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, or any successor thereto.
"Person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership, limited liability company or
other entity, or any government or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan as defined in
Section 3(2) of ERISA (other than a Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section 412 of the Code and which is
maintained for employees of Infinity or any ERISA Affiliate.
"Prime Rate" shall have the meaning assigned to such term in the
definition of "Alternate Base Rate".
"Pro Forma Period" shall have the meaning assigned to such term in
Section 1.2(c).
"Projections" shall have the meaning assigned to such term in Section
3.12.
"Property" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.
"Quoted Swingline Loans" shall have the meaning assigned to such term
in Section 2.6(a).
"Quoted Swingline Rate" shall have the meaning assigned to such term
in Section 2.6(a).
"Rating Agencies" shall mean S&P and Moody's.
"Reference Banks" shall mean Chase and such other banks designated by
the Administrative Agent from time to time.
"Register" shall have the meaning assigned to such term in Section
9.4(d).
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
14
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Required Lenders" shall mean, at any time, Lenders whose respective
Total Facility Percentages aggregate not less than 51%.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement (or, in the case of matters
relating to ERISA, any officer responsible for the administration of the pension
funds of such corporation).
"Revolving Credit Borrowing Request" shall mean a request made
pursuant to Section 2.4 in the form of Exhibit B-4.
"Revolving Credit Loans" shall mean the revolving loans made by the
Lenders to any Borrower pursuant to Section 2.4. Each Revolving Credit Loan
shall be a Eurodollar Loan or an ABR Loan.
"Revolving Credit Maturity Date" shall mean May 3, 2005
"Revolving Credit Percentage" of any Lender at any time shall mean the
percentage of the aggregate Commitments (or, following any termination of all
the Commitments, the Commitments most recently in effect) represented by such
Lender's Commitment (or, following any such termination, the Commitment of such
Lender most recently in effect).
"Sale/Leaseback" shall mean any lease, whether an operating lease or a
capital lease, whereby Infinity or any of its Subsidiaries, directly or
indirectly, becomes or remains liable as lessee or as guarantor or other surety,
of any Property whether now owned or hereafter acquired, (a) that Infinity or
any of its Subsidiaries, as the case may be, has sold or transferred or is to
sell or transfer to any other Person (other than Infinity or any of its
Subsidiaries), or (b) that is acquired by any other Person, as part of a
financing transaction to which Infinity or any of its Subsidiaries is a party,
in contemplation of leasing such Property to Infinity or any of its
Subsidiaries, as the case may be.
"Sale/Leaseback Attributable Debt" shall mean, for any Sale/Leaseback,
the present value (discounted at the rate of interest implicit in such
Sale/Leaseback, determined in accordance with GAAP or, in the event that such
rate of interest is not reasonably determinable, discounted at the interest rate
applicable to an ABR Revolving Credit Loan on the date of the commencement of
such transaction), as of the date on which the amount thereof is to be
determined, of the obligation of the lessee for net rental payments during the
remaining term of such Sale/Leaseback (including any period for which such
Sale/Leaseback may, at the option of the lessor, be extended). In the case of
any master lease agreement, each fixed or capital asset subject thereto (or any
related group of such assets for which the lease terms commence at the same
time) shall be deemed to be the subject of a separate Sale/Leaseback, and, to
the extent that any fixed or capital asset is the subject of a Sale/Leaseback
and then of another, the Sale/Leaseback Attributable Debt will be deemed to be
incurred only under the first such Sale/Leaseback. For the purposes of Section
5.5(m), the Sale/Leaseback Attributable Debt of any Subsidiary of Infinity which
is not a Wholly Owned Subsidiary shall be deemed to be the amount determined in
accordance with the foregoing provisions of this definition multiplied by
Infinity's direct or indirect percentage common equity interest in such
Subsidiary at the date of determination.
15
"S&P" shall mean Standard & Poor's Ratings Services.
"SEC" shall mean the Securities and Exchange Commission.
"Specified Section 5.5(n) Indebtedness" shall have the meaning
assigned to such term in Section 5.5(n).
"SPC" shall have the meaning specified in Section 9.4(i).
"Spot Rate" shall mean, at any date, the Administrative Agent's or
Lender's, as the case may be, (or, for purposes of determinations in respect of
the Aggregate L/C Exposure related to Letters of Credit issued in a Foreign
Currency, the Issuing Lender's or Issuing Lenders', as the case may be) spot
buying rate for the relevant Foreign Currency against Dollars as of
approximately 11:00 a.m. (London time) on such date for settlement on the second
Business Day.
"Subsidiary" shall mean, for any Person (the "Parent"), any
corporation, partnership or other entity of which shares of Voting Capital Stock
sufficient to elect a majority of the board of directors or other Persons
performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the happening of
any contingency) are at the time directly or indirectly owned or controlled by
the Parent or one or more of its Subsidiaries or by the Parent and one or more
of its Subsidiaries. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary
or Subsidiaries of Infinity.
"Subsidiary Borrower" shall mean any Subsidiary (a) which is organized
under the laws of the United States of America, any state, territory or
possession thereof or the District of Columbia, (b) which is designated as a
Subsidiary Borrower by Infinity pursuant to a Subsidiary Borrower Designation,
(c) which has delivered to the Administrative Agent a Subsidiary Borrower
Request and (d) whose designation as a Subsidiary Borrower has not been
terminated pursuant to Section 4.2.
"Subsidiary Borrower Designation" shall mean a designation,
substantially in the form of Exhibit B-6, which may be delivered by Infinity and
approved by Infinity and shall be accompanied by a Subsidiary Borrower Request.
"Subsidiary Borrower Obligations" shall mean, with respect to each
Subsidiary Borrower, the unpaid principal of and interest on the Loans made to
such Subsidiary Borrower (including, without limitation, interest accruing after
the maturity of the Loans made to such Subsidiary Borrower and interest accruing
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to such Subsidiary
Borrower, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) and all other obligations and liabilities of such
Subsidiary Borrower to the Administrative Agent or to any Lender, whether direct
or indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement.
"Subsidiary Borrower Request" shall mean a request, substantially in
the form of Exhibit B-8, which is received by the Administrative Agent in
connection with a Subsidiary Borrower Designation.
16
"Swingline Borrower" shall mean Infinity and any Subsidiary Borrower
designated as a "Swingline Borrower" by Infinity in a written notice to the
Administrative Agent; provided, that, unless otherwise agreed by the
Administrative Agent, no more than one Subsidiary Borrower may be a Swingline
Borrower at any one time.
"Swingline Commitment" shall mean, (i) with respect to any Swingline
Lender, the Commitment of such Lender to make ABR Swingline Loans pursuant to
Section 2.6, as designated in accordance with Section 2.6(g) and as set forth on
Schedule 1.1, and, (ii) in the aggregate, $300,000,000.
"Swingline Lender" shall mean any Lender designated by Infinity as a
"Swingline Lender" pursuant to Section 2.6(g).
"Swingline Loans" shall mean the collective reference to the ABR
Swingline Loans and the Quoted Swingline Loans.
"Swingline Percentage" of any Swingline Lender at any time shall mean
the percentage of the aggregate Swingline Commitments represented by such
Swingline Lender's Swingline Commitment.
"Test Period" shall have the meaning assigned to such term in Section
1.2(c).
"364-Day Credit Agreement" shall mean the 364-day credit agreement,
dated the date hereof, among Infinity, as borrower, each subsidiary borrower,
the lenders party thereto, Chase, as administrative agent, Fleet National Bank
and Bank of America, N.A., as co-syndication agents, and Bank of New York, as
documentation agent.
"Total Commitment" shall mean at any time the aggregate amount of the
Commitments in effect at such time.
"Total Facility Exposure" shall mean at any time the aggregate amount
of the Facility Exposures at such time.
"Total Facility Percentage" shall mean, as to any Lender at any time,
the quotient (expressed as a percentage) of (a) such Lender's Commitment (or (x)
for the purposes of acceleration of the Loans pursuant to clause (II) of Article
VI or (y) if the Commitments have terminated, such Lender's Facility Exposure)
and (b) the aggregate of all Lenders' Commitments (or (x) for the purposes of
acceleration of the Loans pursuant to clause (II) of Article VI or (y) if the
Commitments have terminated, the Total Facility Exposure).
"Transferee" shall mean any assignee or participant described in
Section 9.4(b) or (f).
"Type" when used in respect of any Loan, shall refer to the Rate by
reference to which interest on such Loan is determined. For purposes hereof,
"Rate" shall mean the Eurodollar Rate, the Alternate Base Rate, the Quoted
Swingline Rate and the rate paid on Absolute Rate Loans.
"Unrefunded Swingline Loans" shall have the meaning assigned to such
term in Section 2.6(d).
"U.S. Person" shall mean a citizen, national or resident of the United
States of America, or an entity organized in or under the laws of the United
States of America.
17
"Viacom" shall mean Viacom, Inc., a Delaware corporation.
"Viacom Merger" shall mean the merger between CBS and Viacom.
"Voting Capital Stock" shall mean securities or other ownership
interests of a corporation, partnership or other entity having by the terms
thereof ordinary voting power to vote in the election of the board of directors
or other Persons performing similar functions of such corporation, partnership
or other entity (without regard to the occurrence of any contingency).
"Wholly Owned Subsidiary" shall mean any Subsidiary of which all
shares of Voting Capital Stock (other than, in the case of a corporation,
directors' qualifying shares) are owned directly or indirectly by the Parent (as
defined in the definition of "Subsidiary").
SECTION 1.2. Terms Generally. (a) The definitions in Section 1.1
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall, except where the context otherwise requires, be deemed to be
followed by the phrase "without limitation". All references herein to Articles,
Sections, Exhibits and Schedules shall be deemed references to Articles and
Sections of, and Exhibits and Schedules to, this Agreement unless the context
shall otherwise require.
(b) Except as otherwise expressly provided herein, all terms of an
accounting nature shall be construed in accordance with GAAP as in effect from
time to time; provided, however, that, for purposes of determining compliance
with the covenants set forth in Sections 5.7 and 5.8 (such Sections being
referred to as the "Financial Covenants"), except as otherwise set forth in the
Financial Covenants and the definitions related thereto, such terms shall be
construed in accordance with GAAP as in effect on December 31, 1999.
(c) For the purposes of calculating Consolidated EBITDA and
Consolidated Interest Expense for any period (a "Test Period"), (i) if at any
time from the period (a "Pro Forma Period") commencing on the second day of such
Test Period and ending on the date which is ten days prior to the date of
delivery of the Compliance Certificate or Interim Certificate, as the case may
be, in respect of such Test Period (or, in the case of any pro forma calculation
made pursuant hereto in respect of a particular transaction, ending on the date
such transaction is consummated after giving effect thereto), Infinity or any
Subsidiary shall have made any Material Disposition, the Consolidated EBITDA for
such Test Period shall be reduced by an amount equal to the Consolidated EBITDA
(if positive) attributable to the Property which is the subject of such Material
Disposition for such Test Period or increased by an amount equal to the
Consolidated EBITDA (if negative) attributable thereto for such Test Period, and
Consolidated Interest Expense for such Test Period shall be reduced by an amount
equal to the Consolidated Interest Expense for such Test Period attributable to
any Indebtedness of Infinity or any Subsidiary repaid, repurchased, defeased or
otherwise discharged with respect to Infinity and its Subsidiaries in connection
with such Material Disposition (or, if the Capital Stock of any Subsidiary is
sold, the Consolidated Interest Expense for such Test Period directly
attributable to the Indebtedness of such Subsidiary to the extent Infinity and
its continuing Subsidiaries are no longer liable for such Indebtedness after
such Disposition); (ii) if during such Pro Forma Period Infinity or any
Subsidiary shall have made a Material Acquisition, Consolidated EBITDA and
Consolidated Interest Expense for such Test Period shall be calculated after
giving pro forma effect thereto (including the incurrence or assumption of any
Indebtedness in connection therewith) as if such Material Acquisition (and the
incurrence or assumption of any such Indebtedness) occurred on the first day of
such Test Period; and (iii) if during such Pro Forma Period any Person that
18
subsequently became a Subsidiary or was merged with or into Infinity or any
Subsidiary since the beginning of such Pro Forma Period shall have entered into
any disposition or acquisition transaction that would have required an
adjustment pursuant to clause (i) or (ii) above if made by Infinity or a
Subsidiary during such Pro Forma Period, Consolidated EBITDA and Consolidated
Interest Expense for such Test Period shall be calculated after giving pro forma
effect thereto as if such transaction occurred on the first day of such Test
Period. For the purposes of this paragraph, whenever pro forma effect is to be
given to a Material Disposition or Material Acquisition, the amount of income or
earnings relating thereto and the amount of Consolidated Interest Expense
associated with any Indebtedness discharged or incurred in connection therewith,
the pro forma calculations shall be determined in good faith by a Financial
Officer of Infinity. If any Indebtedness bears a floating rate of interest and
the incurrence or assumption thereof is being given pro forma effect, the
interest expense on such Indebtedness shall be calculated as if the rate in
effect on the last day of the relevant Pro Forma Period had been the applicable
rate for the entire relevant Test Period (taking into account any interest rate
protection agreement applicable to such Indebtedness if such interest rate
protection agreement has a remaining term in excess of 12 months). Comparable
adjustments shall be made in connection with any determination of Consolidated
EBITDA.
ARTICLE II.
THE CREDITS
SECTION 2.1. Commitments. Subject to the terms and conditions hereof
and relying upon the representations and warranties herein set forth, each
Lender agrees, severally and not jointly, to make Revolving Credit Loans to
Infinity or any Subsidiary Borrower, at any time and from time to time on and
after the Closing Date and until the earlier of (a) the Business Day immediately
preceding the Revolving Credit Maturity Date and (b) the termination of the
Commitment of such Lender, in an aggregate principal amount at any time
outstanding not to exceed such Lender's Commitment. Each Borrower may borrow,
prepay and reborrow Revolving Credit Loans on and after the Closing Date and
prior to the Revolving Credit Maturity Date, subject to the terms, conditions
and limitations set forth herein.
SECTION 2.2. Revolving Credit Loans; Competitive Loans. (a) Each
Revolving Credit Loan shall be made to the relevant Borrower by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made to the relevant Borrower by the Lender whose Competitive Bid
therefor is accepted, and in the amount so accepted, in accordance with the
procedures set forth in Section 2.3. The Revolving Credit Loans or Competitive
Loans shall be made in minimum amounts equal to (i) in the case of Competitive
Loans, $5,000,000 or an integral multiple of $1,000,000 in excess thereof, (ii)
in the case of Eurodollar Revolving Credit Loans, $50,000,000 or an integral
multiple of $5,000,000 in excess thereof, and (iii) in the case of ABR Revolving
Credit Loans, $25,000,000 or an integral multiple of $5,000,000 in excess
thereof (or an aggregate principal amount equal to the remaining balance of the
available Total Commitment).
(b) Each Lender shall make each Loan (other than a Swingline Loan, as
to which this Section 2.2 shall not apply) to be made by it on the proposed date
thereof by wire transfer of immediately available funds to the Administrative
Agent in New York, New York, not later than 12:00 noon, New York City time (or,
in connection with an ABR Loan to be made on the same day on which a notice is
submitted, 12:30 p.m., New York City time) and the Administrative Agent shall by
3:00 p.m., New York City time, credit the amounts so received to the general
deposit account of the relevant Borrower with the Administrative Agent.
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SECTION 2.3. Competitive Bid Procedure. (a) In order to request
Competitive Bids, the relevant Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Competitive Bid Request in the form of
Exhibit B-1, to be received by the Administrative Agent (i) in the case of a
Eurodollar Competitive Loan in Dollars, not later than 10:00 a.m., New York City
time, four Business Days before a proposed Competitive Loan, (ii) in the case of
a Eurodollar Competitive Loan in a Foreign Currency, not later than 10:00 a.m.,
New York City time, five Business Days before a proposed Competitive Loan ,
(iii) in the case of an Absolute Rate Loan in Dollars, not later than 10:00
a.m., New York City time, one Business Day before a proposed Competitive Loan
and (iv) in the case of an Absolute Rate Loan in a Foreign Currency, not later
than 10:00 a.m., New York City time, three Business Day before a proposed
Competitive Loan. A Competitive Bid Request (A) that does not conform
substantially to the format of Exhibit B-1 may be rejected in the Administrative
Agent's discretion (exercised in good faith), and , (B) for a Competitive Loan
denominated in a Foreign Currency will be rejected by the Administrative Agent
if, after giving effect thereto, the Dollar equivalent of the aggregate face
amount of all Competitive Loans denominated in Foreign Currencies then
outstanding would exceed $150,000,000, as determined by the Administrative
Agent, and, in each case, the Administrative Agent shall promptly notify the
relevant Borrower of such rejection by telephone, confirmed by telecopier. Such
request shall in each case refer to this Agreement and specify (w) whether the
Competitive Loan then being requested is to be a Eurodollar Competitive Loan or
an Absolute Rate Loan, (x) the currency, (y) the date of such Loan (which shall
be a Business Day) and the aggregate principal amount thereof which shall be in
a minimum principal amount of the equivalent of $5,000,000 and, in the case of a
Competitive Bid for a Competitive Loan in Dollars, in an integral multiple of
$1,000,000, and (z) the Interest Period with respect thereto (which may not end
after the Revolving Credit Maturity Date). Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid (and in any event by
5:00 p.m., New York City time, on the date of such receipt if such receipt
occurs by the time specified in the first sentence of this paragraph), the
Administrative Agent shall invite by telecopier (in the form set forth in
Exhibit B-2) the Lenders to bid, on the terms and conditions of this Agreement,
to make Competitive Loans pursuant to such Competitive Bid Request.
(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the relevant Borrower responsive to a Competitive Bid
Request. Each Competitive Bid must be received by the Administrative Agent by
telecopier, in the form of Exhibit B-3, (i) in the case of a Eurodollar
Competitive Loan in Dollars, not later than 9:30 a.m., New York City time, three
Business Days before a proposed Competitive Loan, (ii) in the case of a
Eurodollar Competitive Loan in a Foreign Currency, not later than 9:30 a.m., New
York City time, four Business Days before a proposed Competitive Loan, (iii) in
the case of an Absolute Rate Loan in Dollars, not later than 9:30 a.m., New York
City time, on the day of a proposed Competitive Loan, and (iv) in the case of an
Absolute Rate Loan in a Foreign Currency, not later than 9:30 a.m., New York
City time, two days before a proposed Competitive Loan. Multiple Competitive
Bids will be accepted by the Administrative Agent. Competitive Bids that do not
conform substantially to the format of Exhibit B-3 may be rejected by the
Administrative Agent after conferring with, and upon the instruction of, the
relevant Borrower, and the Administrative Agent shall notify the Lender making
such nonconforming Competitive Bid of such rejection as soon as practicable.
Each Competitive Bid shall refer to this Agreement and specify (x) the principal
amount in the relevant currency (which shall be in a minimum principal amount of
the equivalent of $5,000,000 and, in the case of a Competitive Bid for a
Competitive Loan in Dollars, in an integral multiple of $1,000,000 and which may
equal the entire principal amount of the Competitive Loan requested by the
relevant Borrower) of the Competitive Loan or Loans that the applicable Lender
is willing to make to the relevant Borrower, (y) the Competitive Bid Rate or
Rates at which such Lender is prepared to make the Competitive Loan or Loans and
(z) the Interest Period and the last day thereof. A Competitive Bid submitted
pursuant to this
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paragraph (b) shall be irrevocable (subject to the satisfaction of the
conditions to borrowing set forth in Article IV).
(c) The Administrative Agent shall promptly (and in any event by
10:15 a.m., New York City time, on the date on which such Competitive Bids shall
have been made) notify the relevant Borrower by telecopier of all the
Competitive Bids made, the Competitive Bid Rate and the principal amount in the
relevant currency of each Competitive Loan in respect of which a Competitive Bid
was made and the identity of the Lender that made each Competitive Bid. The
Administrative Agent shall send a copy of all Competitive Bids to the relevant
Borrower for its records as soon as practicable after completion of the bidding
process set forth in this Section 2.3.
(d) The relevant Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. The relevant Borrower shall
notify the Administrative Agent by telephone, confirmed by telecopier in such
form as may be agreed upon by such Borrower and the Administrative Agent,
whether and to what extent it has decided to accept or reject any of or all the
Competitive Bids referred to in paragraph (c) above, (i) in the case of a
Eurodollar Competitive Loan in Dollars, not later than 11:00 a.m., New York City
time, three Business Days before a proposed Competitive Loan, (ii) in the case
of a Eurodollar Competitive Loan in a Foreign Currency, not later than 11:00
a.m., New York City time, four Business Days before a proposed Competitive Loan,
(iii) in the case of an Absolute Rate Loan in Dollars, not later than 11:00
a.m., New York City time, on the day of a proposed Competitive Loan, and (iv) in
the case of an Absolute Rate Loan in a Foreign Currency, not later than 11:00
a.m., New York City time, on the day before a proposed Competitive Loan;
provided, however, that (A) the failure by such Borrower to give such notice
shall be deemed to be a rejection of all the Competitive Bids referred to in
paragraph (c) above, (B) such Borrower shall not accept a Competitive Bid made
at a particular Competitive Bid Rate if it has decided to reject a Competitive
Bid made at a lower Competitive Bid Rate, (C) the aggregate amount of the
Competitive Bids accepted by such Borrower shall not exceed the principal amount
specified in the Competitive Bid Request (but may be less than that requested),
(D) if such Borrower shall accept a Competitive Bid or Competitive Bids made at
a particular Competitive Bid Rate but the amount of such Competitive Bid or
Competitive Bids shall cause the total amount of Competitive Bids to be accepted
by it to exceed the amount specified in the Competitive Bid Request, then such
Borrower shall accept a portion of such Competitive Bid or Competitive Bids in
an amount equal to the amount specified in the Competitive Bid Request less the
amount of all other Competitive Bids accepted with respect to such Competitive
Bid Request, which acceptance, in the case of multiple Competitive Bids at such
Competitive Bid Rate, shall be made pro rata in accordance with the amount of
each such Competitive Bid at such Competitive Bid Rate, and (E) except pursuant
to clause (D) above no Competitive Bid shall be accepted for a Competitive Loan
unless such Competitive Loan is in a minimum principal amount of the equivalent
of $5,000,000 and, in the case of a Competitive Bid for a Competitive Loan in
Dollars, an integral amount multiple of, in the case of a Competitive Bid for a
Competitive Loan in Dollars, $1,000,000; provided, further, however, that if a
Competitive Loan must be in an amount less than the equivalent of $5,000,000
because of the provisions of clause (D) above, such Competitive Loan may be for
a minimum of, in the case of a Competitive Bid for a Competitive Loan in
Dollars, $1,000,000 or any integral multiple thereof, and in calculating the pro
rata allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (D) the amounts shall be
rounded to integral multiples of the equivalent of $1,000,000 (or, in the case
of a Competitive Bid for a Competitive Loan in a Foreign Currency, a multiple
selected by the Administrative Agent) in a manner which shall be in the
discretion of such Borrower. A notice given by any Borrower pursuant to this
paragraph (d) shall be irrevocable.
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(e) The Administrative Agent shall promptly 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) by telecopy sent by the Administrative
Agent, 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 Competitive Bid has been accepted.
(f) On the date the Competitive Loan is to be made, each Lender
participating therein shall (i) if such Competitive Loan is to be made in
Dollars, make available its share of such Competitive Loan in Dollars not later
than 2:00 p.m. New York City time, in immediately available funds, in New York
to the Administrative Agent as notified by the Administrative Agent by two
Business Days notice and (ii) if such Competitive Loan is to be made in a
Foreign Currency, make available its share of such Competitive Loan in such
Foreign Currency not later than 11:00 a.m. London time, in immediately available
funds, in London to the Administrative Agent as notified by the Administrative
Agent by two Business Days notice.
(g) If the Lender which is the Administrative Agent shall elect to
submit a Competitive Bid in its capacity as a Lender, it shall submit such
Competitive Bid directly to the relevant Borrower one quarter of an hour earlier
than the latest time at which the other Lenders are required to submit their
Competitive Bids to the Administrative Agent pursuant to paragraph (b) above.
(h) All notices required by this Section 2.3 shall be given in
accordance with Section 9.1.
(i) No Borrower shall have the right to prepay any Competitive Loan
without the consent of the affected Lender or Lenders.
SECTION 2.4. Revolving Credit Borrowing Procedure. In order to
request a Revolving Credit Loan, the relevant Borrower shall hand deliver or
telecopy to the Administrative Agent a Revolving Credit Borrowing Request in the
form of Exhibit B-4 (a) in the case of a Eurodollar Revolving Credit Loan, not
later than 11:00 a.m., New York City time, three Business Days before a proposed
borrowing and (b) in the case of an ABR Revolving Credit Loan, not later than
11:00 a.m., New York City time, on the day of a proposed borrowing. Such notice
shall be irrevocable and shall in each case specify (i) whether the Revolving
Credit Loan then being requested is to be a Eurodollar Revolving Credit Loan or
an ABR Revolving Credit Loan, (ii) the date of such Revolving Credit Loan (which
shall be a Business Day) and the amount thereof; and (iii) in the case of a
Eurodollar Revolving Credit Loan, the Interest Period with respect thereto. The
Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.4 and of each Lender's portion of the requested Loan.
SECTION 2.5. Repayment of Loans. Each Borrower shall repay all
outstanding Revolving Credit Loans and ABR Swingline Loans made to it, in each
case on the Revolving Credit Maturity Date (or such earlier date on which the
Commitments shall terminate in accordance herewith). Each Borrower shall repay
Quoted Swingline Loans and Competitive Loans made to it, in each case on the
Maturity Date applicable thereto. Each Loan shall bear interest from and
including the date thereof on the outstanding principal balance thereof as set
forth in Section 2.10.
SECTION 2.6. Swingline Loans. (a) Subject to the terms and
conditions hereof and relying upon the representations and warranties herein set
forth, each Swingline Lender agrees, severally and not jointly, at any time and
from time to time on and after the Closing Date and until the earlier of the
Business Day immediately preceding the Revolving Credit Maturity Date and the
termination of the Swingline Commitment of such Swingline Lender, (i) to make
available to any Swingline Borrower
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Swingline Loans ("Quoted Swingline Loans") on the basis of quoted interest rates
(each, a "Quoted Swingline Rate") furnished by such Swingline Lender from time
to time in its discretion to such Swingline Borrower (through the Administrative
Agent) and accepted by such Swingline Borrower in its discretion and (ii) to
make Swingline Loans ("ABR Swingline Loans") to any Swingline Borrower bearing
interest at a rate equal to the Alternate Base Rate in an aggregate principal
amount (in the case of this clause (ii)) not to exceed such Swingline Lender's
Swingline Commitment. The aggregate outstanding principal amount of the Quoted
Swingline Loans of any Swingline Lender, when added to the aggregate outstanding
principal amount of the ABR Swingline Loans of such Swingline Lender, may exceed
such Swingline Lender's Swingline Commitment; provided, that in no event shall
the aggregate outstanding principal amount of the Swingline Loans exceed the
aggregate Swingline Commitments then in effect. Each Quoted Swingline Loan
shall be made only by the Swingline Lender furnishing the relevant Quoted
Swingline Rate. Each ABR Swingline Loan shall be made by the Swingline Lenders
ratably in accordance with their respective Swingline Percentages. The
Swingline Loans shall be made in a minimum aggregate principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof (or an
aggregate principal amount equal to the remaining balance of the available
Swingline Commitments). Each Swingline Lender shall make the portion of each
Swingline Loan to be made by it available to any Swingline Borrower by means of
a credit to the general deposit account of such Swingline Borrower with the
Administrative Agent or a wire transfer, at the expense of such Swingline
Borrower, to an account designated in writing by such Swingline Borrower, in
each case by 3:30 p.m., New York City time, on the date such Swingline Loan is
requested to be made pursuant to paragraph (b) below, in immediately available
funds. Each Swingline Borrower may borrow, prepay and reborrow Swingline Loans
on or after the Closing Date and prior to the Revolving Credit Maturity Date (or
such earlier date on which the Commitments shall terminate in accordance
herewith) on the terms and subject to the conditions and limitations set forth
herein.
(b) The relevant Swingline Borrower shall give the Administrative
Agent telephonic, written or telecopy notice substantially in the form of
Exhibit B-5 (in the case of telephonic notice, such notice shall be promptly
confirmed by telecopy) no later than 2:30 p.m., New York City time (or, in the
case of a proposed Quoted Swingline Loan, 12:00 noon, New York City time), on
the day of a proposed Swingline Loan. Such notice shall be delivered on a
Business Day, shall be irrevocable (subject, in the case of Quoted Swingline
Loans, to receipt by the relevant Swingline Borrower of Quoted Swingline Rates
acceptable to it) and shall refer to this Agreement and shall specify the
requested date (which shall be a Business Day) and amount of such Swingline
Loan. The Administrative Agent shall promptly advise the Swingline Lenders of
any notice received from any Swingline Borrower pursuant to this paragraph (b).
In the event that a Swingline Borrower accepts a Quoted Swingline Rate in
respect of a proposed Quoted Swingline Loan, it shall notify the Administrative
Agent (which shall in turn notify the relevant Swingline Lender) of such
acceptance no later than 2:30 p.m., New York City time, on the relevant
borrowing date.
(c) In the event that any ABR Swingline Loan shall be outstanding for
more than five Business Days, the Administrative Agent shall, on behalf of the
relevant Swingline Borrower (which hereby irrevocably directs and authorizes the
Administrative Agent to act on its behalf), request each Lender, including the
Swingline Lenders, to make an ABR Revolving Credit Loan in an amount equal to
such Lender's Revolving Credit Percentage of the principal amount of such ABR
Swingline Loan. Each Lender will make the proceeds of its Revolving Credit Loan
available to the Administrative Agent for the account of the Swingline Lenders
at the office of the Administrative Agent prior to 12:00 Noon, New York City
time, in funds immediately available on the Business Day next succeeding the
date such notice is given. The proceeds of such Revolving Credit Loans shall be
immediately applied to repay the ABR Swingline Loans.
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(d) If, for any reason, Revolving Credit Loans may not be (as
determined by the Administrative Agent in its sole discretion), or are not, made
pursuant to Section 2.6(c) to repay ABR Swingline Loans as required by said
Section, then, effective on the date such Revolving Credit Loans would otherwise
have been made, the Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon New York City time on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of such unrefunded ABR Swingline Loans (the "Unrefunded
Swingline Loans"), and each Lender severally, unconditionally and irrevocably
agrees that it shall purchase an undivided participating interest in such ABR
Swingline Loans in an amount equal to the amount of the Revolving Credit Loan
which otherwise would have been made by such Lender pursuant to Section 2.6(c),
which purchase shall be funded by the time such Revolving Credit Loan would have
been required to be made pursuant to Section 2.6(c). In the event that the
Lenders purchase undivided participating interests pursuant to the first
sentence of this paragraph (d), each Lender shall immediately transfer to the
Administrative Agent, for the account of the Swingline Lenders, in immediately
available funds, the amount of its participation. Any Lender holding a
participation in an Unrefunded Swingline Loan may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by the relevant Swingline Borrower to such Lender by reason thereof as fully as
if such Lender had made a Loan directly to such Swingline Borrower in the amount
of such participation.
(e) Whenever, at any time after any Swingline Lender has received
from any Lender such Lender's participating interest in an ABR Swingline Loan,
such Swingline Lender receives any payment on account thereof, such Swingline
Lender will promptly distribute to such Lender its participating interest in
such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participating interest was
outstanding and funded); provided, however, that in the event that such payment
received by such Swingline Lender is required to be returned, such Lender will
return to such Swingline Lender any portion thereof previously distributed by
such Swingline Lender to it.
(f) Notwithstanding anything to the contrary in this Agreement, each
Lender's obligation to make the Revolving Credit Loans referred to in Section
2.6(c) and to purchase and fund participating interests pursuant to Section
2.6(d) shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender or any Swingline Borrower
may have against any Swingline Lender, any Swingline Borrower or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of a
Default or an Event of Default or the failure to satisfy any of the conditions
specified in Article IV; (iii) any adverse change in the condition (financial or
otherwise) of Infinity or any of its Subsidiaries; (iv) any breach of this
Agreement by any Borrower or any Lender; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
(g) Upon written or telecopy notice to the Swingline Lenders and to
the Administrative Agent, Infinity may at any time terminate, from time to time
in part reduce, or from time to time (with the approval of the relevant
Swingline Lender) increase, the Swingline Commitment of any Swingline Lender.
At any time when there shall be fewer than ten Swingline Lenders, Infinity may
appoint from among the Lenders a new Swingline Lender, subject to the prior
consent of such new Swingline Lender and prior notice to the Administrative
Agent, so long as at no time shall there be more than ten Swingline Lenders.
Notwithstanding anything to the contrary in this Agreement, (i) if any ABR
Swingline Loans shall be outstanding at the time of any termination, reduction,
increase or appointment pursuant to the preceding two sentences, the Swingline
Borrowers shall on the date thereof prepay or borrow ABR Swingline Loans to the
extent necessary to ensure that at all times the outstanding ABR Swingline Loans
held by the Swingline Lenders shall be pro rata according to the respective
Swingline Commitments of the Swingline
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Lenders and (ii) in no event may the aggregate Swingline Commitments exceed
$300,000,000. On the date of any termination or reduction of the Swingline
Commitments pursuant to this paragraph (g), the Swingline Borrowers shall pay or
prepay so much of the Swingline Loans as shall be necessary in order that, after
giving effect to such termination or reduction, (i) the aggregate outstanding
principal amount of the ABR Swingline Loans of any Swingline Lender will not
exceed the Swingline Commitment of such Swingline Lender and (ii) the aggregate
outstanding principal amount of all Swingline Loans will not exceed the
aggregate Swingline Commitments.
(h) Each Swingline Borrower may prepay any Swingline Loan in whole or
in part at any time without premium or penalty; provided, that such Swingline
Borrower shall have given the Administrative Agent written or telecopy notice
(or telephone notice promptly confirmed in writing or by telecopy) of such
prepayment not later than 10:30 a.m., New York City time, on the Business Day
designated by such Swingline Borrower for such prepayment; and provided,
further, that each partial payment shall be in an amount that is an integral
multiple of $1,000,000. Each notice of prepayment under this paragraph (h)
shall specify the prepayment date and the principal amount of each Swingline
Loan (or portion thereof) to be prepaid, shall be irrevocable and shall commit
such Swingline Borrower to prepay such Swingline Loan (or portion thereof) by
the amount stated therein on the date stated therein. All prepayments under
this paragraph (h) shall be accompanied by accrued interest on the principal
amount being prepaid to the date of payment. Each payment of principal of or
interest on ABR Swingline Loans shall be allocated, as between the Swingline
Lenders, pro rata in accordance with their respective Swingline Percentages.
SECTION 2.7. Letters of Credit. (a) Subject to the terms and
conditions hereof and relying upon the representations and warranties herein set
forth, each Issuing Lender agrees, at any time and from time to time on or after
the Closing Date until the earlier of (i) the fifth Business Day preceding the
Revolving Credit Maturity Date and (ii) the termination of the Commitments in
accordance with the terms hereof, to issue and deliver or to extend the expiry
of Letters of Credit for the account of Infinity in an aggregate outstanding
undrawn amount which does not exceed the maximum amount specified in the
applicable Issuing Lender Agreement; provided, that in no event shall the
Aggregate LC Exposure exceed $750,000,000 at any time. Each Letter of Credit
(i) shall be in a form approved in writing by Infinity and the applicable
Issuing Lender and (ii) shall permit drawings upon the presentation of such
documents as shall be specified by Infinity in the applicable notice delivered
pursuant to paragraph (c) below. The Lenders agree that, subject to compliance
with the conditions precedent set forth in Section 4.3, any Designated Letter of
Credit may be designated as a Letter of Credit hereunder from time to time on or
after the Closing Date pursuant to the procedures specified in the definition of
"Designated Letters of Credit".
(b) Each Letter of Credit shall by its terms expire not later than
the fifth Business Day preceding the Revolving Credit Maturity Date. Any Letter
of Credit may provide for the renewal thereof for additional periods (which
shall in no event extend beyond the date referred to in the preceding sentence).
Each Letter of Credit shall by its terms provide for payment of drawings in
Dollars or in a Foreign Currency; provided, that a Letter of Credit denominated
in a Foreign Currency may not be issued if, after giving effect thereto, the
Dollar equivalent (calculated on the basis of the applicable Foreign Exchange
Rate) of the aggregate face amount of all Letters of Credit denominated in
Foreign Currencies then outstanding would exceed $150,000,000, as determined by
the Administrative Agent.
(c) Infinity shall give the applicable Issuing Lender and the
Administrative Agent written or telecopy notice not later than 10:00 a.m., New
York City time, five Business Days (or such shorter period as shall be
acceptable to such Issuing Lender) prior to any proposed issuance of a Letter of
Credit.
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Each such notice shall refer to this Agreement and shall specify (i) the date on
which such Letter of Credit is to be issued (which shall be a Business Day) and
the face amount of such Letter of Credit, (ii) the name and address of the
beneficiary, (iii) whether such Letter of Credit is a Financial Letter of Credit
or a Non-Financial Letter of Credit (subject to confirmation of such status by
the Administrative Agent), (iv) whether such Letter of Credit shall permit a
single drawing or multiple drawings, (v) the form of the documents required to
be presented at the time of any drawing (together with the exact wording of such
documents or copies thereof), (vi) the expiry date of such Letter of Credit
(which shall conform to the provisions of paragraph (b) above) and (vii) if such
Letter of Credit is to be in a Foreign Currency, the relevant Foreign Currency.
The Administrative Agent shall give to each Lender prompt written or telecopy
advice of the issuance of any Letter of Credit. Each determination by the
Administrative Agent as to whether or not a Letter of Credit constitutes a
Financial Letter of Credit shall be conclusive and binding upon Infinity and the
Lenders.
(d) By the issuance of a Letter of Credit and without any further
action on the part of the applicable Issuing Lender or the Lenders in respect
thereof, the applicable Issuing Lender hereby grants to each Lender, and each
Lender hereby acquires from such Issuing Lender, a participation in such Letter
of Credit equal to such Lender's Revolving Credit Percentage at the time of any
drawing thereunder of the face amount of such Letter of Credit, effective upon
the issuance of such Letter of Credit. In addition, the applicable Issuing
Lender hereby grants to each Lender, and each Lender hereby acquires from such
Issuing Lender, a participation in each Designated Letter of Credit equal to
such Lender's Revolving Credit Percentage at the time of any drawing thereunder
of the face amount of such Designated Letter of Credit, effective on the date
such Designated Letter of Credit is designated as a Letter of Credit hereunder.
In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of each Issuing Lender, in accordance with paragraph (f) below, such
Lender's Revolving Credit Percentage of each unreimbursed LC Disbursement made
by such Issuing Lender; provided, however, that the Lenders shall not be
obligated to make any such payment with respect to any payment or disbursement
made under any Letter of Credit to the extent resulting from the gross
negligence or wilful misconduct of such Issuing Lender.
(e) Each Lender acknowledges and agrees that its acquisition of
participations pursuant to paragraph (d) above in respect of Letters of Credit
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender or Infinity may have
against any Issuing Lender, Infinity or any other Person, for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the conditions specified in Article IV;
(iii) any adverse change in the condition (financial or otherwise) of Infinity
or any of its Subsidiaries; (iv) any breach of this Agreement by Infinity or any
Lender; or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
(f) On the date on which it shall have ascertained that any documents
presented under a Letter of Credit appear to be in conformity with the terms and
conditions of such Letter of Credit, the applicable Issuing Lender shall give
written or telecopy notice to Infinity and the Administrative Agent of the
amount of the drawing and the date on which payment thereon has been or will be
made. If the applicable Issuing Lender shall not have received from Infinity
the payment required pursuant to paragraph (g) below by 12:00 noon, New York
City time, two Business Days after the date on which payment of a draft
presented under any Letter of Credit has been made, such Issuing Lender shall so
notify the Administrative Agent, which shall in turn promptly notify each
Lender, specifying in the notice to each Lender such Lender's Revolving Credit
Percentage of such LC Disbursement. Each Lender shall pay to the Administrative
Agent, not later than 2:00 p.m., New York City time, on such second Business
Day,
26
such Lender's Revolving Credit Percentage of such LC Disbursement (which
obligation shall be expressed in Dollars only), which the Administrative Agent
shall promptly pay to the applicable Issuing Lender. The Administrative Agent
will promptly remit to each Lender such Lender's Revolving Credit Percentage of
any amounts subsequently received by the Administrative Agent from Infinity in
respect of such LC Disbursement; provided, that (i) amounts so received for the
account of any Lender prior to payment by such Lender of amounts required to be
paid by it hereunder in respect of any LC Disbursement and (ii) amounts
representing interest at the rate provided in paragraph (g) below on any LC
Disbursement for the period prior to the payment by such Lender of such amounts
shall in each case be remitted to the applicable Issuing Lender.
(g) If an Issuing Lender shall pay any draft presented under a Letter
of Credit, Infinity shall pay to such Issuing Lender an amount equal to the
amount of such draft before 12:00 noon, New York City time, on the second
Business Day immediately following the date of payment of such draft, together
with interest (if any) on such amount at a rate per annum equal to the interest
rate in effect for ABR Loans (or, in the case of Foreign Currency-denominated
Letters of Credit, the rate which would reasonably and customarily be charged by
such Issuing Lender on outstanding loans denominated in the relevant Foreign
Currency) from (and including) the date of payment of such draft to (but
excluding) the date on which either Infinity shall have repaid, or the Lenders
shall have refunded, such draft in full (which interest shall be payable on such
second Business Day and from time to time thereafter on demand until either
Infinity shall have repaid, or the Lenders shall have refunded, such draft in
full). In the event that such drawing shall be refunded by the Lenders as
provided in Section 2.7(f), Infinity shall pay to the Administrative Agent, for
the account of the Lenders, quarterly on the last day of each March, June,
September and December, interest on the amount so refunded at a rate per annum
equal to the interest rate in effect for ABR Loans from (and including) the date
of such refunding to (but excluding) the date on which the amount so refunded by
the Lenders shall have been paid in full in Dollars by Infinity. Each payment
made to an Issuing Lender by Infinity pursuant to this paragraph shall be made
at such Issuing Lender's address for notices specified herein in lawful money of
(x) the United States of America (in the case of payments made on Dollar-
denominated Letters of Credit) or (y) the applicable foreign jurisdiction (in
the case of payments on Foreign Currency-denominated Letters of Credit) and in
immediately available funds. The obligation of Infinity to pay the amounts
referred to above in this paragraph (g) (and the obligations of the Lenders
under paragraphs (d) and (f) above) shall be absolute, unconditional and
irrevocable and shall be satisfied strictly in accordance with their terms
irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Issuing Lender Agreement or of the obligations of Infinity
under this Agreement or any Issuing Lender Agreement;
(ii) the existence of any claim, setoff, defense or other right
which Infinity or any other Person may at any time have against the
beneficiary under any Letter of Credit, the Agents, any Issuing Lender or
any Lender (other than the defense of payment in accordance with the terms
of this Agreement or a defense based on the gross negligence or wilful
misconduct of the applicable Issuing Lender) or any other Person in
connection with this Agreement or any other transaction;
(iii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect; provided, that
payment by the applicable Issuing Lender under such Letter of Credit
against presentation of such draft or document shall not have constituted
gross negligence or wilful misconduct;
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(iv) payment by the applicable Issuing Lender under a Letter of
Credit against presentation of a draft or other document which does not
comply in any immaterial respect with the terms of such Letter of Credit;
provided, that such payment shall not have constituted gross negligence or
wilful misconduct; or
(v) any other circumstance or event whatsoever, whether or not
similar to any of the foregoing; provided, that such other circumstance or
event shall not have been the result of gross negligence or wilful
misconduct of the applicable Issuing Lender.
It is understood that in making any payment under a Letter of Credit
(x) such Issuing Lender's exclusive reliance on the documents presented to it
under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereof equals the
amount of such draft and whether or not any document presented pursuant to such
Letter of Credit proves to be forged, fraudulent or invalid in any respect, if
such document on its face appears to be in order, and whether or not any other
statement or any other document presented pursuant to such Letter of Credit
proves to be forged or invalid or any statement therein proves to be inaccurate
or untrue in any respect whatsoever, and (y) any noncompliance in any immaterial
respect of the documents presented under a Letter of Credit with the terms
thereof shall, in either case, not, in and of itself, be deemed wilful
misconduct or gross negligence of such Issuing Lender.
(h) (i) Notwithstanding anything to the contrary contained in this
Agreement, for purposes of calculating any LC Fee or Commitment Fee payable in
respect of any Business Day, the Administrative Agent shall convert the amount
available to be drawn under any Letter of Credit denominated in Foreign Currency
into an amount of Dollars based upon the relevant Foreign Exchange Rate in
effect for such day. If on any date the Administrative Agent shall notify
Infinity that, by virtue of any change in the Foreign Exchange Rate of any
Foreign Currency in which a Letter of Credit is denominated, the Total Facility
Exposure shall exceed the Total Commitment then in effect, then, within three
Business Days after the date of such notice, Infinity shall prepay the Revolving
Credit Loans and/or the Swingline Loans to the extent necessary to eliminate
such excess. Each Issuing Lender which has issued a Letter of Credit
denominated in a Foreign Currency agrees to notify the Administrative Agent of
the average daily outstanding amount thereof for any period in respect of which
LC Fees or Commitment Fees are payable and, upon request by the Administrative
Agent, for any other date or period. For all purposes of this Agreement,
determinations by the Administrative Agent of the Dollar equivalent of any
amount expressed in a Foreign Currency shall be made on the basis of Foreign
Exchange Rates reset monthly (or on such other periodic basis as shall be
selected by the Administrative Agent in its sole discretion) and shall in each
case be conclusive absent manifest error.
(ii) Notwithstanding anything to the contrary contained in this
Section 2.7, prior to demanding any reimbursement from the Lenders pursuant to
Section 2.7(f) in respect of any Letter of Credit denominated in a Foreign
Currency, the relevant Issuing Lender shall convert Infinity's obligation under
Section 2.7(g) to reimburse such Issuing Lender in such Foreign Currency into an
obligation to reimburse such Issuing Lender (and, in turn, the Lenders) in
Dollars. The amount of any such converted obligation shall be computed based
upon the relevant Foreign Exchange Rate (as quoted by the Administrative Agent
to such Issuing Lender) in effect for the day on which such conversion occurs.
SECTION 2.8. Conversion and Continuation Options. (a) The relevant
Borrower may elect from time to time to convert Eurodollar Revolving Credit
Loans (or, subject to Section 2.10(f), a portion thereof) to ABR Revolving
Credit Loans on the last day of an Interest Period with respect thereto
28
by giving the Administrative Agent prior irrevocable notice of such election.
The relevant Borrower may elect from time to time to convert ABR Revolving
Credit Loans (subject to Section 2.10(f)) 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 therefor. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Lender thereof. All or any part of outstanding
Eurodollar Revolving Credit Loans and ABR Revolving Credit Loans may be
converted as provided herein; provided, that no Revolving Credit Loan may be
converted into a Eurodollar Revolving Credit Loan when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Required
Lenders have determined in its or their sole discretion not to permit such a
conversion.
(b) Any Eurodollar Revolving Credit Loans (or, subject to Section
2.10(f), a portion thereof) may be continued as such upon the expiration of the
then current Interest Period with respect thereto by the relevant Borrower
giving 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, of the length of the next Interest Period to be applicable to
such Revolving Credit Loans; provided, that no Eurodollar Revolving Credit Loan
may be continued as such when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit such a continuation;
and provided, further, that if the relevant Borrower 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 Revolving Credit Loans on the last
day of such then expiring Interest Period. Upon receipt of any notice from a
Borrower pursuant to this Section 2.8(b), the Administrative Agent shall
promptly notify each Lender thereof.
SECTION 2.9. Fees. (a) Infinity agrees to pay to the Administrative
Agent for the account of each Lender a Commitment Fee for the period from and
including the Closing Date to the Revolving Credit Maturity Date (or such
earlier date on which the Commitments shall terminate in accordance herewith),
computed at a per annum rate equal to the Applicable Commitment Fee Rate on the
average daily Commitment Fee Calculation Amount in respect of such Lender during
the period for which payment is made. All Commitment 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 on the last day of each March, June, September
and December, on the Revolving Credit Maturity Date or such earlier date on
which the Commitments shall be terminated, commencing on the first of such dates
to occur after the Closing Date.
(b) Infinity agrees to pay each Lender, through the Administrative
Agent, on the last day of each March, June, September and December and on the
Revolving Credit Maturity Date or the date on which the Commitment of such
Lender shall be terminated as provided herein and all Letters of Credit issued
hereunder shall have expired, a letter of credit fee (an "LC Fee") computed at a
per annum rate equal to the Applicable LC Fee Rate on such Lender's Revolving
Credit Percentage of the average daily undrawn amount of the Financial Letters
of Credit or Non-Financial Letters of Credit, as the case may be, outstanding
during the preceding quarter (or shorter period commencing with the Closing Date
or ending with the Revolving Credit Maturity Date or the date on which the
Commitment of such Lender shall have been terminated and all Letters of Credit
issued hereunder shall have expired). All LC Fees shall be computed on the
basis of the actual number of days elapsed in a year of 360 days.
(c) Infinity agrees to pay to the Administrative Agent, for its own
account, the administrative agent's fees ("Administrative Agent's Fees")
provided for in the Administrative Agent Fee Letter at the times provided
therein.
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(d) Infinity agrees to pay to each Issuing Lender, through the
Administrative Agent, for its own account, the applicable Issuing Lender Fees ,
including, without limitation, a fronting fee at a rate to be determined by
Infinity and the relevant Issuing Lender payable on the last day of each March,
June, September and December to such Issuing Lender for the period from and
including the date of issuance of such Letter of Credit to, but not including,
the termination date of such Letter of Credit.
(e) Infinity agrees to pay to each Lender, through the Administrative
Agent, on each Interest Payment Date for ABR Loans, a utilization fee (a
"Utilization Fee") at a rate per annum equal to the Applicable Utilization Fee
Rate for each Excess Utilization Day during the period covered by such Interest
Payment Date on the Facility Exposure of such Lender on such Excess Utilization
Day. 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 in arrears.
(f) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the relevant Lenders or to the Issuing Lenders. Once paid, none of the
Fees shall be refundable under any circumstances (other than corrections of
errors in payment).
SECTION 2.10. Interest on Loans; Eurodollar Tranches; Etc. (a)
Subject to the provisions of Section 2.11, Eurodollar Loans shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) 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 Loan
plus the Applicable Eurodollar Margin and (ii) in the case of each Eurodollar
Competitive Loan, the Eurodollar Rate for the Interest Period in effect for such
Loan plus the Margin offered by the Lender making such Loan and accepted by the
relevant Borrower pursuant to Section 2.3. The Eurodollar Rate for each
Interest Period shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error. The Administrative
Agent shall promptly advise the relevant Borrower and each Lender of such
determination.
(b) Subject to the provisions of Section 2.11, ABR Loans shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 365 or 366 days, as the case may be, when determined by reference to the
Prime Rate and over a year of 360 days at all other times) at a rate per annum
equal to the Alternate Base Rate. The Alternate Base Rate shall be determined
by the Administrative Agent, and such determination shall be conclusive absent
manifest error.
(c) Subject to the provisions of Section 2.11, Quoted Swingline Loans
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 360 days) at a rate per annum equal to the relevant Quoted
Swingline Rate.
(d) Subject to the provisions of Section 2.11, each Absolute Rate
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed rate
of interest offered by the Lender making such Loan and accepted by the relevant
Borrower pursuant to Section 2.3.
(e) Interest on each Loan shall be payable on each applicable
Interest Payment Date.
(f) Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations, repayments and prepayments of Eurodollar
Revolving Credit Loans hereunder and all selections of Interest Periods
hereunder in respect of Eurodollar Revolving Credit Loans shall be in
30
such amounts and shall be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of the Eurodollar Revolving
Credit Loans comprising each Eurodollar Tranche shall be equal to $50,000,000 or
a whole multiple of $5,000,000 in excess thereof. Unless otherwise agreed by
the Administrative Agent, in no event shall there be more than 25 Eurodollar
Tranches outstanding at any time.
(g) If no election as to the Type of Revolving Credit Loan is
specified in any notice of borrowing with respect thereto, then the requested
Loan shall be an ABR Loan. If no Interest Period with respect to a Eurodollar
Revolving Credit Loan is specified in any notice of borrowing, conversion or
continuation, then the relevant Borrower shall be deemed to have selected an
Interest Period of one month's duration. The Interest Period with respect to a
Eurodollar Competitive Loan shall in no case be less than one month's duration.
SECTION 2.11. Default Interest. (a) 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), all outstanding Loans (whether or not
overdue) shall bear interest at a rate per annum which is equal to the rate that
would otherwise be applicable thereto pursuant to the provisions of Section 2.10
plus 2% and (b) if all or a portion of any LC Disbursement, any interest payable
on any Loan or LC Disbursement 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 otherwise applicable to ABR Loans pursuant to Section 2.10(b) plus 2%,
in each case, with respect to clauses (a) and (b) above, from the date of such
non-payment until such amount is paid in full (as well after as before
judgment).
SECTION 2.12. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Loan (i) the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon each
Borrower) 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, or (ii) the Required Lenders shall have determined and
shall have notified the Administrative Agent that the Eurodollar Rate determined
or to be determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such Lenders) of
making or maintaining Eurodollar Loans during such Interest Period, the
Administrative Agent shall, as soon as practicable thereafter, give written or
telecopy notice of such determination to the Borrowers and the Lenders. In the
event of any such determination, until the Administrative Agent shall have
advised the Borrowers and the Lenders that the circumstances giving rise to such
notice no longer exist, (i) any request by a Borrower for a Eurodollar
Competitive Loan pursuant to Section 2.3 to be made after such determination
shall be of no force and effect and shall be denied by the Administrative Agent,
(ii) any request by a Borrower for a Eurodollar Revolving Credit Loan pursuant
to Section 2.4 to be made after such determination shall be deemed to be a
request for an ABR Loan and (iii) any request by a Borrower for conversion into
or a continuation of a Eurodollar Revolving Credit Loan pursuant to Section 2.8
to be made after such determination shall have no force and effect (in the case
of a requested conversion) or shall be deemed to be a request for a conversion
into an ABR Loan (in the case of a requested continuation). Also, in the event
of any such determination, the relevant Borrower shall be entitled, in its sole
discretion, if the requested Loan has not been made, to cancel its acceptance of
the Competitive Bids or to cancel its Competitive Bid Request relating thereto.
Each determination by the Administrative Agent or the Required Lenders hereunder
shall be conclusive absent manifest error.
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SECTION 2.13. Termination, Reduction and Increase of Commitments.
(a) Upon at least three Business Days' prior irrevocable written or telecopy
notice to the Administrative Agent, Infinity may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Commitments; provided, however, that (i) each partial reduction of the
Commitments shall be in a minimum principal amount of $10,000,000 and in
integral multiples of $1,000,000 in excess thereof and (ii) no such termination
or reduction shall be made if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, (x) the Outstanding
Revolving Extensions of Credit of any Lender would exceed such Lender's
Commitment then in effect or (y) the Total Facility Exposure would exceed the
Total Commitment then in effect. The Administrative Agent shall promptly advise
the Lenders of any notice given pursuant to this Section 2.13(a).
(b) Except as otherwise provided in Section 2.21, each reduction in
the Commitments hereunder shall be made ratably among the Lenders in accordance
with their respective Commitments. Infinity agrees to pay to the Administrative
Agent for the account of the Lenders, on the date of termination or reduction of
the Commitments, the Commitment Fees on the amount of the Commitments so
terminated or reduced accrued through the date of such termination or reduction.
(c) Infinity shall have the right at any time and from time to time
to increase the Total Commitments to an aggregate amount, when added to the
aggregate amount of Total Commitments (as defined under the 364-Day Credit
Agreement) under the 364-Day Credit Agreement, not to exceed $3,500,000,000 (i)
by requesting that one or more banks or other financial institutions not a party
to this Agreement become a Lender hereunder or (ii) by requesting that any
Lender already party to this Agreement increase the amount of such Lender's
Commitment; provided, that the addition of any bank or financial institution
pursuant to clause (i) above shall be subject to the consent of the
Administrative Agent (which consent shall not be unreasonably withheld);
provided further, the Commitment of any bank or other financial institution
pursuant to clause (i) above, shall be in an aggregate principal amount at least
equal to $10,000,000; provided further, the amount of the increase of any
Lender's Commitment pursuant to clause (ii) above when added to the amount of
such Lender's Commitment before the increase, shall be in an aggregate principal
amount at least equal to $10,000,000.
(d) Any additional bank, financial institution or other entity which
elects to become a party to this Agreement and obtain a Commitment pursuant to
clause (c) of this Section 2.13 above shall execute a New Lender Supplement
(each, a "New Lender Supplement") with Infinity and the Administrative Agent,
substantially in the form of Exhibit G, whereupon such bank, financial
institution or other entity (herein called 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, and Schedule
1.1 shall be deemed to be amended to add the name and Commitment of such New
Lender.
(e) Any increase in the Total Commitment pursuant to clause (c)(ii) of
this Section 2.13 shall be effective only upon the execution and delivery to
Infinity and the Administrative Agent of a commitment increase letter in
substantially the form of Exhibit H hereto (a "Commitment Increase Letter"),
which Commitment Increase Letter shall be delivered to the Administrative Agent
not less than five Business Days prior to the Commitment Increase Date and shall
specify (i) the amount of the Commitment of any bank or financial institution
not a party to this agreement which is becoming a Lender or the amount of any
increase in the Commitment of any Lender and (ii) the date such increase is to
become effective (the "Commitment Increase Date").
32
(f) Any increase in the Total Commitment pursuant to this Section 2.13
shall not be effective unless:
(i) no Default or Event of Default shall have occurred and be
continuing on the Commitment Increase Date;
(ii) each of the representations and warranties made by Infinity and
the Subsidiary Borrowers in Article III, or in any certificate delivered
pursuant hereto, shall be true and correct in all material respects on the
Commitment Increase Date with the same effect as though made on and as of
such date, except to the extent such representations and warranties
expressly relate to an earlier date in which case such representations and
warranties shall be true and correct in all material respects as of such
earlier date;
(iii) the Administrative Agent shall have received each of (A) a
certificate of the corporate secretary or assistant secretary of the
Borrowers as to the taking of any corporate action necessary in connection
with such increase and (B) an opinion or opinions of general counsel to the
Borrowers as to their corporate power and authority to borrow hereunder
after giving effect to such increase and such other matters relating
thereto as the Administrative Agent and its counsel may reasonably request.
Each notice requesting an increase in the Total Commitments pursuant to this
Section 2.13 shall constitute a certification to the effect set forth in clauses
(i) and (ii) of this Section 2.13(e).
(g) No Lender shall at any time be required to agree to a request of
Infinity to increase its Commitment or obligations hereunder.
SECTION 2.14. Optional Prepayments of Revolving Credit Loans. The
relevant Borrower may at any time and from time to time prepay the Revolving
Credit Loans, in whole or in part, without premium or penalty, upon giving
irrevocable written or telecopy notice (or telephone notice promptly confirmed
by written or telecopy notice) to the Administrative Agent: (i) before 10:00
a.m., New York City time, three Business Days prior to prepayment, in the case
of Eurodollar Revolving Credit Loans, and (ii) before 10:00 a.m., New York City
time, one Business Day prior to prepayment, in the case of ABR Revolving Credit
Loans. Such notice shall specify the date and amount of prepayment and whether
the prepayment is of Eurodollar Revolving Credit Loans, ABR Revolving Credit
Loans or a combination thereof, and, if of a combination thereof, the amount
allocable to each. If a Eurodollar Revolving Credit Loan is prepaid on any day
other than the last day of the Interest Period applicable thereto, the relevant
Borrower shall also pay any amounts owing pursuant to Section 2.16. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
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
(except in the case of ABR Revolving Credit Loans) accrued interest to such date
on the amount prepaid. Partial prepayments of Revolving Credit Loans shall be
in an aggregate principal amount of $10,000,000 or a whole multiple of
$1,000,000 in excess thereof.
SECTION 2.15. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the Closing Date any change
in applicable law or regulation (including any change in the reserve percentages
provided for in Regulation D) or in the interpretation or administration thereof
by any Governmental Authority charged with the interpretation or administration
thereof shall change the basis of taxation of payments to any Lender of the
principal of or interest on any Eurodollar Loan or Absolute Rate Loan made by
such Lender (other than changes in respect of taxes
33
imposed on the overall net income of such Lender by the jurisdiction in which
such Lender has its principal office (or in which it holds any Eurodollar Loan
or Absolute Rate Loan) or by any political subdivision or taxing authority
therein and other than taxes that would not have been imposed but for the
failure of such Lender to comply with applicable certification, information,
documentation or other reporting requirements), or shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets of
or deposits with or for the account of such Lender, or shall impose on such
Lender or the London interbank market any other condition affecting this
Agreement or any Eurodollar Loan or Absolute Rate Loan made by such Lender, and
the result of any of the foregoing shall be to increase the cost to such Lender
of making or maintaining any Eurodollar Loan or Absolute Rate Loan or to reduce
the amount of any sum received or receivable by such Lender hereunder (whether
of principal, interest or otherwise) in respect of any Eurodollar Loan or
Absolute Rate Loan by an amount deemed by such Lender to be material, then the
relevant Borrower agrees to pay to such Lender as provided in paragraph (c)
below such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered. Notwithstanding the foregoing,
no Lender shall be entitled to request compensation under this paragraph with
respect to any Competitive Loan if the change giving rise to such request shall,
or in good faith should, have been taken into account in formulating the
Competitive Bid pursuant to which such Competitive Loan shall have been made.
(b) If any Lender or any Issuing Lender shall have determined that
the adoption after the Closing Date hereof of any law, rule, regulation or
guideline regarding capital adequacy, or any change in any law, rule, regulation
or guideline regarding capital adequacy or in the interpretation or
administration of any of the foregoing by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any lending office of such Lender) or
Issuing Lender or any Lender's or Issuing Lender's holding company with any
request or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Lender's or Issuing
Lender's capital or on the capital of such Lender's or Issuing Lender's holding
company, if any, as a consequence of this Agreement or the Loans made by such
Lender or the LC Exposure of such Lender or Letters of Credit issued by such
Issuing Lender pursuant hereto to a level below that which such Lender or
Issuing Lender or such Lender's or Issuing Lender's holding company could have
achieved but for such applicability, adoption, change or compliance (taking into
consideration such Lender's or Issuing Lender's policies and the policies of
such Lender's or Issuing Lender's holding company with respect to capital
adequacy) by an amount deemed by such Lender or Issuing Lender to be material,
then from time to time Infinity agrees to pay to such Lender or Issuing Lender
as provided in paragraph (c) below such additional amount or amounts as will
compensate such Lender or Issuing Lender or such Lender's or Issuing Lender's
holding company for any such reduction suffered.
(c) A certificate of each Lender or Issuing Lender setting forth such
amount or amounts as shall be necessary to compensate such Lender or Issuing
Lender as specified in paragraph (a) or (b) above, as the case may be, and the
basis therefor in reasonable detail shall be delivered to the relevant Borrower
and shall be conclusive absent manifest error. The relevant Borrower shall pay
each Lender or Issuing Lender the amount shown as due on any such certificate
within 30 days after its receipt of the same. Upon the receipt of any such
certificate, the relevant Borrower shall be entitled, in its sole discretion, if
any requested Loan has not been made, to cancel its acceptance of the relevant
Competitive Bids or to cancel the Competitive Bid Request relating thereto,
subject to Section 2.16.
(d) Except as provided in this paragraph, failure on the part of any
Lender to demand compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital with respect to any
period shall not constitute a waiver of such Lender's right to demand
34
compensation with respect to any other period. The protection of this Section
2.15 shall be available to each Lender regardless of any possible contention of
the invalidity or inapplicability of the law, rule, regulation, guideline or
other change or condition which shall have occurred or been imposed so long as
it shall be customary for Lenders affected thereby to comply therewith. No
Lender shall be entitled to compensation under this Section 2.15 for any costs
incurred or reductions suffered with respect to any date unless it shall have
notified the relevant Borrower that it will demand compensation for such costs
or reductions under paragraph (c) above not more than 90 days after the later of
(i) such date and (ii) the date on which it shall have become aware of such
costs or reductions. Notwithstanding any other provision of this Section 2.15,
no Lender shall demand compensation for any increased cost or reduction referred
to above if it shall not at the time be the general policy or practice of such
Lender to demand such compensation in similar circumstances under comparable
provisions of other credit agreements, if any. In the event any Borrower shall
reimburse any Lender pursuant to this Section 2.15 for any cost and such Lender
shall subsequently receive a refund in respect thereof, such Lender shall so
notify such Borrower and, upon its request, will pay to such Borrower the
portion of such refund which such Lender shall determine in good faith to be
allocable to the cost so reimbursed. The covenants contained 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. Each Borrower agrees to indemnify each
Lender against any loss or expense described below which such Lender may sustain
or incur as a consequence of (a) any failure by such Borrower to fulfill on the
date of any borrowing hereunder the applicable conditions set forth in Article
IV, (b) any failure by such Borrower to borrow, continue or convert any Loan
hereunder after irrevocable notice of such borrowing, continuation or conversion
has been given or deemed given or Competitive Bids have been accepted pursuant
to Article II or (c) any payment, prepayment or conversion of a Eurodollar Loan
or Absolute Rate Loan made to such Borrower required by any other provision of
this Agreement or otherwise made or deemed made, whatever the circumstances may
be that give rise to such payment, prepayment or conversion, or any transfer of
any such Loan pursuant to Section 2.21 or 9.4(b), on a date other than the last
day of the Interest Period applicable thereto; provided, that any request for
indemnification made by any Lender to any Borrower pursuant to clause (c) hereof
shall be accompanied by such Lender's calculation of such amount to be
indemnified. The loss or expense for which such Lender shall be indemnified
under this Section 2.16 shall be equal to the excess, if any, as reasonably
determined by such Lender, of (i) its cost of obtaining the funds for the Loan
being paid, prepaid, converted or not borrowed, continued or converted (assumed
to be the Eurodollar Rate in the case of Eurodollar Loans) for the period from
the date of such payment, prepayment, conversion or failure to borrow, continue
or convert to the last day of the Interest Period for such Loan (or, in the case
of a failure to borrow, continue or convert, the Interest Period for such Loan
which would have commenced on the date of such failure) over (ii) the amount of
interest (as reasonably determined by such Lender) that would be realized by
such Lender in reemploying the funds so paid, prepaid, converted or not
borrowed, continued or converted for such period or Interest Period, as the case
may be; provided, however, that such amount shall not include any loss of a
Lender's margin or spread over its cost of obtaining funds as described above.
A certificate of any Lender setting forth any amount or amounts which such
Lender is entitled to receive pursuant to this Section 2.16 shall be delivered
to the relevant Borrower and shall be conclusive absent 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. Pro Rata Treatment; Funding Matters; Evidence of Debt.
(a) Except as required under Section 2.21, each payment or prepayment of
principal of any Revolving Credit Loan, each payment of interest on the
Revolving Credit Loans,, each payment of LC Fees, and each reduction of the
Commitments, shall be allocated pro rata among the Lenders in accordance with
their respective
35
Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their outstanding Revolving
Credit Loans); and, each payment of the Commitment Fees pursuant to Section
2.9(a)(i) shall be allocated pro rata among the Lenders in accordance with their
respective Commitment Fee Calculation Amount. Each Lender agrees that in
computing such Lender's portion of any Loan to be made hereunder, the
Administrative Agent may, in its discretion, round such Lender's percentage of
such Loan to the next higher or lower whole Dollar amount.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the relevant borrowing date that such Lender will not make
available to the Administrative Agent such Lender's portion of a borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such borrowing in accordance with
this Agreement and the Administrative Agent may, in reliance upon such
assumption, make available to the relevant Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have made such portion
available to the Administrative Agent, each of such Lender and the relevant
Borrower agrees to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to such Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of such Borrower, the
interest rate applicable at the time to the relevant Loan and (ii) in the case
of such Lender, the Federal Funds Effective Rate. If such Lender shall repay to
the Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such borrowing for the purposes of this Agreement;
provided, that such repayment shall not release such Lender from any liability
it may have to such Borrower for the failure to make such Loan at the time
required herein.
(c) The failure of any Lender to make any Loan shall not in itself
relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender).
(d) Each Lender may at its option make any Eurodollar Loan by causing
any domestic or foreign branch or affiliate of such Lender to make such Loan;
provided, that any exercise of such option shall not affect the obligation of
the relevant Borrower to repay such Loan in accordance with the terms of this
Agreement.
(e) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness to such Lender resulting from
each Loan made by it from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under this Agreement.
The Administrative Agent shall maintain accounts in which it will record (i) the
amount of each Loan made hereunder, the Borrower with respect to each Loan, the
Type of each Loan and each Interest Period, if any, applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable
from each Borrower to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder from any Borrower and each
Lender's share thereof. The entries made in the accounts maintained pursuant to
this paragraph (e) shall, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner affect the
obligations of any Borrower to repay the Loans in accordance with their terms.
(f) In order to expedite the transactions contemplated by this
Agreement, each Subsidiary Borrower shall be deemed, by its execution and
delivery of a Subsidiary Borrower Request, to have
36
appointed Infinity to act as agent on behalf of such Subsidiary Borrower for the
purpose of (a) giving any notices contemplated to be given by such Subsidiary
Borrower pursuant to this Agreement, including, without limitation, borrowing
notices, prepayment notices, continuation notices, conversion notices,
competitive bid requests and competitive bid acceptances or rejections and (b)
paying on behalf of such Subsidiary Borrower any Subsidiary Borrower Obligations
owing by such Subsidiary Borrower; provided, that each Subsidiary Borrower shall
retain the right, in its discretion, to directly give any or all of such notices
or make any or all of such payments.
(g) The Administrative Agent shall promptly notify the Lenders upon
receipt of any Subsidiary Borrower Designation and Subsidiary Borrower Request.
The Administrative Agent shall promptly notify the Swingline Lenders upon
receipt of any designation of a Subsidiary Borrower as a Swingline Borrower.
SECTION 2.18. Sharing of Setoffs. Except to the extent that this
Agreement provides for payments to be allocated to Revolving Credit Loans,
Swingline Loans or Competitive Loans, as the case may be, each Lender agrees
that if it shall, through the exercise of a right of banker's lien, setoff or
counterclaim against any Borrower, or pursuant to a secured claim under Section
506 of Title 11 of the United States Code or other security or interest arising
from, or in lieu of, such secured claim, received by such Lender under any
applicable bankruptcy, insolvency or other similar law or otherwise, or by any
other means (other than pursuant to any provision of this Agreement), obtain
payment (voluntary or involuntary) in respect of any category of its Loans or
such Lender's Revolving Credit Percentage of any LC Disbursement as a result of
which the unpaid principal portion of such Loans or the unpaid portion of such
Lender's Revolving Credit Percentage of the LC Disbursements shall be
proportionately less than the unpaid principal portion of such Loans or the
unpaid portion of the Revolving Credit Percentage of the LC Disbursements of any
other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in such Loans or the Revolving Credit
Percentage of the LC Disbursements of such other Lender, so that the aggregate
unpaid principal amount of such Loans and participations in such Loans held by
each Lender or the Revolving Credit Percentage of LC Disbursements and
participations in LC Disbursements held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all such Loans or LC
Disbursements then outstanding as the principal amount of such Loans or the
Revolving Credit Percentage of LC Disbursements of each Lender prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all such Loans or LC Disbursements outstanding prior to such
exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.18 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. Any Lender holding a participation in a
Loan or LC Disbursement deemed to have been so purchased may exercise any and
all rights of banker's lien, setoff or counterclaim with respect to any and all
moneys owing by any Borrower to such Lender by reason thereof as fully as if
such Lender had made a Loan directly such Borrower or issued a Letter of Credit
for the account of Infinity in the amount of such participation.
SECTION 2.19. Payments. (a) Except as otherwise expressly provided
herein, each Borrower shall make each payment (including principal of or
interest on any Loan or any Fees or other amounts) hereunder without setoff or
counterclaim and shall make each such payment not later than 12:00 noon, New
York City time, on the date when due in Dollars to the Administrative Agent at
its offices at The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, in immediately available funds.
37
(b) Whenever any payment (including principal of or interest on any
Loan or any Fees or other amounts) hereunder shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by each Borrower
hereunder to or for the benefit of a Non-U.S. Person shall be made, in
accordance with Section 2.19, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto imposed by or on behalf
of the United States or any political subdivision thereof, excluding taxes
imposed on (or measured by) such Non-U.S. Person's net income or net receipts,
franchise taxes, taxes on doing business or taxes imposed on capital or net
worth (all such nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If any
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder to a Non-U.S. Person, (i) the sum payable shall be
increased by the amount necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.20) such Non-U.S. Person shall receive an amount equal to the sum it would
have received had no such deductions been made, (ii) such Borrower shall make
such deductions and (iii) such Borrower shall pay the full amount deducted to
the relevant taxing authority or other Governmental Authority in accordance with
applicable law.
(b) The relevant Borrower agrees to pay and reimburse on demand all
transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any Governmental Authority in respect of this Agreement, any of the
Loans or the Letters of Credit (all such taxes, assessments or charges
hereinafter referred to as "Other Taxes").
(c) The relevant Borrower will indemnify each Lender (or Transferee)
and the Administrative Agent for the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed by the applicable jurisdiction on
amounts payable under this Section 2.20) paid by such Lender (or Transferee) or
the Administrative Agent, as the case may be, and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted by
the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days after the date such Lender (or
Transferee) or the Administrative Agent, as the case may be, makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by any Borrower in respect of any payment to a Non-U.S. Person,
such Borrower will furnish to the Administrative Agent, at its address referred
to in Section 9.1 for delivery to such Non-U.S. Person, the original or a
certified copy of a receipt (if available) evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.20
shall survive the payment in full of the principal of and interest on all Loans
made hereunder and of all other amounts payable hereunder.
(f) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity created
or organized in or under the laws of the United States of America, or any estate
or trust that is subject to federal income taxation regardless of the source of
its income (a "Non-U.S. Person") shall deliver to Infinity 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 1001 or Form 4224, or, in the case of a Non-U.S.
Person
38
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 Form W-8,
or any subsequent versions thereof or successors thereto (and, if such Non-U.S.
Person delivers a Form W-8, an annual certificate representing that such Non-
U.S. Person is not a "bank" for purposes of Section 881(c) of the Code, is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code)
of Infinity and is not a controlled foreign corporation related to Infinity
(within the meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Non-U.S. Person claiming complete exemption from U.S.
federal withholding tax on all payments by any Borrower under this Agreement.
Such forms shall be delivered by each Non-U.S. Person promptly after it becomes
a party to this Agreement (or, in the case of any participant, promptly after
the date such participant purchases the related participation). In addition,
each Non-U.S. Person shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Person. Each Non-
U.S. Person shall promptly notify Infinity at any time it determines that it is
no longer in a position to provide any previously delivered certificate to
Infinity (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Unless Infinity and the Administrative Agent
(or, in the case of a participant, the Lender from which the related
participation shall have been purchased) have received forms or other documents
satisfactory to them indicating that payments hereunder are not subject to
United States withholding tax, the relevant Borrower or the Administrative Agent
shall withhold taxes from such payments at the applicable statutory rate in the
case of payments of interest to or for any Lender (or Transferee) that is a Non-
U.S. Person. Notwithstanding any other provision of this Section 2.20(f), a
Non-U.S. Person shall not be required to deliver any form pursuant to this
Section 2.20(f) that such Non-U.S. Person is not legally able to deliver by
reason of the adoption of any law, rule or regulation, or any change in any law,
rule or regulation or in the interpretation thereof, in each case occurring
after the date such Non-U.S. Person becomes a Lender (or Transferee).
(g) No Borrower shall be required to pay any additional amounts to
any Non-U.S. Person in respect of United States withholding tax pursuant to
paragraph (a) above (i) if the obligation to pay such additional amounts would
not have arisen but for a failure by such Non-U.S. Person to comply with the
provisions of paragraph (f) above or (ii) in the case of a Transferee, to the
extent such additional amounts exceed the additional amounts that would have
been payable had no transfer or assignment to such Transferee occurred;
provided, however, that each Borrower shall be required to pay those amounts to
any Lender (or Transferee) that it was required to pay hereunder prior to the
failure of such Lender (or Transferee) to comply with the provisions of such
paragraph (f).
SECTION 2.21. Termination or Assignment of Commitments Under Certain
Circumstances. (a) Any Lender (or Transferee) claiming any additional amounts
payable pursuant to Section 2.15 or Section 2.20 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document requested by any Borrower or to change the jurisdiction of its
applicable lending office if the making of such a filing or change would avoid
the need for or reduce the amount of any such additional amounts which may
thereafter accrue and would not, in the sole determination of such Lender (or
Transferee), be otherwise disadvantageous to such Lender (or Transferee).
(b) In the event that (x) any Lender shall have delivered a notice or
certificate pursuant to Section 2.15, (y) any Borrower shall be required to make
additional payments to any Lender under Section 2.20, or (z) any Lender (a "Non-
Consenting Lender") shall withhold its consent to any amendment described in
clause (i) or (ii) of Section 9.8(b) as to which consents have been obtained
from Lenders having Total Facility Percentages aggregating at least 90%,
Infinity shall have the right, at its own expense, upon notice to such Lender
(or Lenders) and the Administrative Agent, (i) to terminate the
39
Commitments of such Lender (except in the case of clause (z) above) or (ii) to
require such Lender (or, in the case of clause (z) above, each Non-Consenting
Lender) to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in Section 9.4) all its interests, rights and
obligations under this Agreement to one or more other financial institutions
acceptable to the Administrative Agent (which approval shall not be unreasonably
withheld) which shall assume such obligations; provided, that (w) in the case of
any replacement of Non-Consenting Lenders, each assignee shall have consented to
the relevant amendment, (x) no such termination or assignment shall conflict
with any law, rule or regulation or order of any Governmental Authority, (y) the
Borrowers or the assignee (or assignees), as the case may be, shall pay to each
affected Lender in immediately available funds on the date of such termination
or assignment the principal of and interest accrued to the date of payment on
the Loans made by it hereunder and all other amounts accrued for its account or
owed to it hereunder and (z) Infinity may not terminate Commitments representing
more than 10% of the original aggregate Commitments pursuant to this paragraph
(b).
SECTION 2.22. Currency Equivalents. (a) The Administrative Agent
shall determine the Dollar equivalent of each Competitive Bid Loan in a Foreign
Currency as of the first day of each Interest Period applicable thereto and, in
the case of any such Interest Period of more than three months, at three-month
intervals after the first day thereof. The Administrative Agent shall promptly
notify the Borrower and the Lenders of the Dollar equivalent so determined by
it. Each such determination shall be based on the Spot Rate (i) on the date of
the related Competitive Bid Request, for purposes of the initial determination
of such Competitive Bid Loan, and (ii) on the fourth Business Day prior to the
date on which such Dollar equivalent is to be determined, for purposes of
subsequent determinations.
(b) The Administrative Agent shall determine the Dollar equivalent of
the Aggregate L/C Exposure related to each Letter of Credit issued in a Foreign
Currency as of the date of the issuance thereof, at three-month intervals after
the date of issuance thereof and as of the date of each drawing thereunder.
Each such determination shall be based on the Spot Rate (i) on the date of the
related notice of any proposed issuance of a Letter of Credit pursuant to
Section 2.7(c), in the case of the initial determination of such Letter of
Credit, (ii) on the second Business Day prior to the date as of which such
Dollar equivalent is to be determined, in the case of any subsequent
determination with respect to an outstanding Letter of Credit and (iii) on the
second Business Day prior to the related drawing thereunder, in the case of any
determination as of a drawing thereunder.
(c) If after giving effect to any such determination of a Dollar
equivalent under (a) or (b) above, the Dollar equivalent of (a) or (b) above
exceeds $150,000,000, the Borrower shall within five Business Days, (i), in the
case of an excess determined pursuant to (a) above, prepay outstanding
Competitive Bid Loans in Foreign Currencies to eliminate such excess, (ii), in
the case of an excess determined pursuant to (b) above, prepay outstanding
Letters of Credit in Foreign Currencies to eliminate such excess, or (iii), in
each case, take such other action to the extent necessary to eliminate any such
excess; provided, whether or not the Dollar equivalent of (a) or (b) above
exceeds $150,000,000, if after giving effect to any such determination of a
Dollar equivalent under (a) or (b) above, the Commitment Utilization Percentage
is greater than 105%, the Borrower shall within five Business Days prepay
outstanding Competitive Bid Loans in Foreign Currencies, prepay outstanding
Letters of Credit in Foreign Currencies or take such other action to the extent
necessary to eliminate any such excess.
SECTION 2.23. Judgment Currency. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum due from the
Borrower hereunder in the currency expressed to be payable herein (the
"specified currency") into another currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance
40
with normal banking procedures the Administrative Agent could purchase the
specified currency with such other currency at the Administrative Agent's London
office on any Business Day preceding that on which the final judgement is given.
The obligations of the Borrower in respect of any sum due to any Lender or the
Administrative Agent hereunder shall, notwithstanding any judgment in a currency
other than the specified currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or the Administrative Agent, as
the case may be, of any sum adjudged to be so due in such other currency such
Lender or the Administrative Agent, as the case may be, may in accordance with
normal banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is less than the
sum originally due to such Lender or the Administrative Agent, as the case may
be, in the specified currency, the Borrower agrees, to the fullest extent that
it may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Administrative Agent, as the case may
be, against such loss, and if the amount of the specified currency so purchased
exceeds (i) the sum originally due to any Lender or the Administrative Agent, as
the case may be, in the specified currency and (ii) any amounts shared with
other Lenders as a result of allocations of such excess as a disproportionate
payment to such Lender as compared to such Lender's Total Facility Percentage,
such Lender or the Administrative Agent, as the case may be, agrees to remit
such excess to the Borrower.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
Infinity hereby represents and warrants, and each Subsidiary Borrower
by its execution and delivery of a Subsidiary Borrower Request represents and
warrants (to the extent specifically applicable to such Subsidiary Borrower), to
each of the Lenders that:
SECTION 3.1. Corporate Existence. Each of Infinity and each Material
Subsidiary: (a) is a corporation, partnership or other entity duly organized and
validly existing under the laws of the jurisdiction of its organization; (b) has
all requisite corporate or other power, and has all material governmental
licenses, authorizations, consents and approvals, necessary to own its assets
and carry on its business as now being or as proposed to be conducted, except
where the failure to have any of the foregoing would not result in a Material
Adverse Effect; and (c) is qualified to do business in all jurisdictions in
which the nature of the business conducted by it makes such qualification
necessary and where failure so to qualify would result in a Material Adverse
Effect.
SECTION 3.2. Financial Condition. (a) The consolidated balance
sheet of Infinity and its Consolidated Subsidiaries as at December 31, 1999, and
the related consolidated statements of income and cash flows of Infinity and its
Consolidated Subsidiaries for the fiscal year ended on such date, with the
opinion thereon of KPMG LLP, heretofore furnished to each of the Lenders, fairly
present the consolidated financial condition of Infinity and its Consolidated
Subsidiaries as at such date and the consolidated results of their operations
for the fiscal year ended on such date in accordance with GAAP. Neither
Infinity nor any of its Material Subsidiaries had on such date any known
material contingent liability, except as referred to or reflected or provided
for in the Exchange Act Report or in such balance sheets (or the notes thereto)
as at such date.
(b) As of the date hereof, there has been no material adverse change
in the consolidated financial condition, operations, assets, business or
prospects taken as a whole of Infinity and its Consolidated Subsidiaries from
that set forth in the consolidated financial statements of Infinity for the
41
fiscal year ended December 31, 1999 referred to in Section 3.2(a) (it being
agreed, however, that none of (i) the reduction by any rating agency of any
rating assigned to Indebtedness of Infinity, (ii) non-cash provisions for loan
losses and additions to valuation allowances, (iii) any change in GAAP or
compliance therewith and (iv) any legal or arbitral proceedings which have been
disclosed in the Exchange Act Report, whether threatened, pending, resulting in
a judgment or otherwise, prior to the time a final judgment for the payment of
money shall have been recorded against Infinity or any Material Subsidiary by
any Governmental Authority having jurisdiction, and the judgment is non-
appealable (or the time for appeal has expired) and all stays of execution have
expired or been lifted shall, in and of itself, constitute such a material
adverse change).
SECTION 3.3. Litigation. Except as disclosed to the Lenders in the
Exchange Act Report filed prior to the Closing Date or otherwise disclosed in
writing to the Lenders prior to the Closing Date, there are no legal or arbitral
proceedings, or any proceedings by or before any Governmental Authority, pending
or (to the knowledge of Infinity) threatened against Infinity or any of its
Material Subsidiaries which have resulted in a Material Adverse Effect (it being
agreed that any legal or arbitral proceedings which have been disclosed in the
Exchange Act Report, whether threatened, pending, resulting in a judgment or
otherwise, prior to the time a final judgment for the payment of money shall
have been recorded against Infinity or any Material Subsidiary by any
Governmental Authority having jurisdiction, and the judgment is non-appealable
(or the time for appeal has expired) and all stays of execution have expired or
been lifted shall not, in and of itself, be deemed to result in a Material
Adverse Effect). The "Exchange Act Report" shall mean, collectively, the Annual
Report of Infinity on Form 10-K for the year ended December 31, 1999 and Report
on Form 8-K of Infinity filed subsequent to December 31, 1999 and delivered to
the Lenders prior to the date hereof.
SECTION 3.4. No Breach, etc. None of the execution and delivery of
this Agreement, the consummation of the transactions herein contemplated and
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter or By-laws (or other
equivalent organizational documents) of any Borrower, or any applicable law or
regulation, or any order, writ, injunction or decree of any Governmental
Authority, or any material agreement or instrument to which Infinity or any of
its Material Subsidiaries is a party or by which any of them is bound or to
which any of them is subject, or constitute a default under any such agreement
or instrument, or result in the creation or imposition of any Lien upon any of
the revenues or assets of Infinity or any of its Material Subsidiaries pursuant
to the terms of any such agreement or instrument. Neither Infinity nor any of
its Material Subsidiaries is in default under or with respect to any of its
material contractual obligations in any respect which would have a Material
Adverse Effect.
SECTION 3.5. Corporate Action. Each Borrower has all necessary
corporate power and authority to execute, deliver and perform its obligations
under this Agreement; the execution and delivery by each Borrower of this
Agreement (or, in the case of each Subsidiary Borrower, the relevant Subsidiary
Borrower Request), and the performance by each Borrower of this Agreement, have
been duly authorized by all necessary corporate action on such Borrower's part;
this Agreement (or, in the case of each Subsidiary Borrower, the relevant
Subsidiary Borrower Request) has been duly and validly executed and delivered by
each Borrower; and this Agreement constitutes a legal, valid and binding
obligation of each Borrower, enforceable in accordance with its terms except as
such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws of general
applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
42
SECTION 3.6. Approvals. No authorizations, approvals or consents of,
and no filings or registrations with, any Governmental Authority are necessary
for the execution, delivery or performance by each Borrower of this Agreement or
for the validity or enforceability hereof.
SECTION 3.7. ERISA. Infinity and, to the best of its knowledge, its
ERISA Affiliates have fulfilled their respective obligations under the minimum
funding standards of ERISA and the Code with respect to each Plan and are in
compliance in all material respects with the currently applicable provisions of
ERISA and the Code except where any failure or non-compliance would not result
in a Material Adverse Effect.
SECTION 3.8. Taxes. As of the Closing Date, United States Federal
income tax returns of or including Infinity and its Material Subsidiaries have
been, to the knowledge of Infinity, examined and closed through the fiscal year
of Infinity ended December 31, 1993. Infinity and its Material Subsidiaries, to
the knowledge of Infinity, have filed all United States Federal income tax
returns and all other material tax returns which are required to be filed by or
in respect of them and have paid or caused to be paid all taxes shown as due on
such returns or pursuant to any assessment received by Infinity or any of its
Material Subsidiaries, except those being contested and reserved against in
accordance with Section 5.2.
SECTION 3.9. Investment Company Act. No Borrower is an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
SECTION 3.10. Hazardous Materials. Except as, in the aggregate,
would not have a Material Adverse Effect, neither Infinity nor any of its
Subsidiaries has received any notice of violation, alleged violation, non-
compliance or liability regarding environmental matters or compliance with
Environmental Laws with regard to any of its or its Subsidiaries' Properties or
business, nor does Infinity have any knowledge that any notice will be received
or is being threatened.
SECTION 3.11. Material Subsidiaries. Set forth in Schedule 3.11 is a
complete and correct list, as of the Closing Date, of all Material Subsidiaries.
SECTION 3.12. No Material Misstatements. No written information,
report, financial statement, exhibit or schedule (the "Information") furnished
by or on behalf of Infinity to the Administrative Agent or any Lender in
connection with the syndication of the Commitments or the negotiation of this
Agreement or included in this Agreement or delivered pursuant hereto contained
as of the time it was furnished any material misstatement of fact or omitted as
of such time to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were, are or will be
made, not misleading; provided,, that with respect to Information consisting of
statements, estimates and projections regarding the future performance of
Infinity and its respective Subsidiaries ("Projections"), no representation or
warranty is made other than that such Projections have been prepared in good
faith utilizing due and careful consideration and the best information available
to Infinity at the time of preparation thereof.
SECTION 3.13. Ownership of Property. Each of Infinity and each of
its Material Subsidiaries has good record and marketable title in fee simple to,
or a valid leasehold interest in, all its real property, and good title to, or a
valid leasehold interest in, all its other Property, except to the extent that
the failure to have such title would not result in a Material Adverse Effect.
43
SECTION 3.14. Intellectual Property. Each of Infinity and each of
its Material Subsidiaries maintains, and is in compliance in all material
respects with, appropriate policies and procedures for establishing and
protecting their respective rights in Intellectual Property. Except as, in the
aggregate, would not result in a Material Adverse Effect, (a) each of Infinity
and each of its Material Subsidiaries owns, or is licensed to use, all
Intellectual Property necessary for the conduct of their respective businesses;
(b) no claim has been asserted and is pending by any Person challenging or
questioning the use of any Intellectual Property or the validity or
effectiveness of any Intellectual Property, nor does Infinity know of any valid
basis for any such claim; and (c) to the best knowledge of Infinity, the use of
the Intellectual Property by Infinity and its Material Subsidiaries does not
infringe on the rights of any Person.
SECTION 3.15. FCC Matters. Except as, in the aggregate, would not
result in a Material Adverse Effect: (a) Infinity and each of its Material
Subsidiaries have all the FCC Licenses necessary for the conduct of their
respective businesses; (b) Infinity and each of its Material Subsidiaries are in
substantial compliance with the Communications Act and with the rules and
regulations thereunder; (c) neither Infinity nor any of its Material
Subsidiaries is a party to, or has any knowledge of, any pending investigation,
notice of violation, order or complaint issued with respect to it by or before
the FCC; and (d) Infinity and its Material Subsidiaries have no reason to
believe that any FCC License will not be renewed in the ordinary course of
business.
ARTICLE IV.
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 4.1. Effectiveness. The effectiveness of this Agreement is
subject to the satisfaction of the following conditions (the date on which all
of such conditions shall have been satisfied, the "Closing Date"):
(a) Credit Agreement. The Administrative Agent shall have received
this Agreement, executed and delivered by a duly authorized officer of
Infinity.
(b) Closing Certificate. The Administrative Agent shall have received
a Closing Certificate, substantially in the form of Exhibit E, of Infinity,
with appropriate insertions and attachments.
(c) Amendment. The Administrative Agent shall have received the
amendment to each Existing Credit Agreement duly executed by the Required
Lenders (as defined in the applicable Existing Credit Agreement) required
to permit (i) the Viacom Merger and (ii) this Agreement and the 364-Day
Credit Agreement and the consummation of the transactions contemplated
hereby and thereby.
(d) Opinion of Counsel. The Administrative Agent shall have received
an opinion of the general counsel of Infinity in form and substance
satisfactory to the Administrative Agent.
SECTION 4.2. Initial Loans to Subsidiary Borrowers. The obligation
of each Lender to make its initial Loan to a particular Subsidiary Borrower, if
designated as such after the Closing Date, is subject to the satisfaction of the
conditions that (a) Infinity shall have delivered to the Administrative
44
Agent a Subsidiary Borrower Designation for such Subsidiary Borrower and (b)
such Subsidiary Borrower shall have furnished to the Administrative Agent (i) a
Subsidiary Borrower Request, (ii) a Closing Certificate of such Subsidiary
Borrower, with appropriate insertions and attachments and (iii) one or more
executed legal opinions with respect to such Subsidiary Borrower, in form and
substance reasonably satisfactory to the Administrative Agent and including, to
the extent applicable, the opinions set forth in Exhibits B-7 and B-8. Infinity
may from time to time deliver a subsequent Subsidiary Borrower Designation with
respect to any Subsidiary Borrower, countersigned by such Subsidiary Borrower,
for the purpose of terminating such Subsidiary Borrower's designation as such,
so long as, on the effective date of such termination, all Subsidiary Borrower
Obligations in respect of such Subsidiary Borrower shall have been paid in full.
In addition, if on any date a Subsidiary Borrower shall cease to be a
Subsidiary, all Subsidiary Borrower Obligations in respect of such Subsidiary
Borrower shall automatically become due and payable on such date and no further
Loans may be borrowed by such Subsidiary Borrower hereunder.
SECTION 4.3. All Credit Events. The obligation of each Lender to
make each Loan, and the obligation of each Issuing Lender to issue each Letter
of Credit, are subject to the satisfaction of the following conditions:.
(a) The Administrative Agent shall have received a request for, or
notice of, such Credit Event if and as required by Section 2.3, 2.4, 2.6 or
2.7, as applicable;
(b) Each of the representations and warranties made by Infinity and,
in the case of a borrowing by a Subsidiary Borrower, by such Subsidiary
Borrower, in Article III, or in any certificate delivered pursuant hereto,
shall be true and correct in all material respects on and as of the date of
such Credit Event with the same effect as though made on and as of such
date, except to the extent such representations and warranties expressly
relate to an earlier date in which case such representations and warranties
shall be true and correct in all material respects as of such earlier date;
(c) At the time of and immediately after giving effect to such Credit
Event no Default or Event of Default shall have occurred and be continuing;
and
(d) After giving effect to such Credit Event, (i) the Outstanding
Revolving Extensions of Credit of each Lender shall not exceed such
Lender's Commitment then in effect and (ii) the Total Facility Exposure
shall not exceed the Total Commitment then in effect.
Each Credit Event shall be deemed to constitute a representation and warranty by
Infinity on the date of such Credit Event as to the matters specified in
paragraphs (b) and (c) of this Section 4.3.
ARTICLE V.
COVENANTS
Infinity covenants and agrees with each Lender that, as long as the
Commitments shall be in effect or the principal of or interest on any Loan shall
be unpaid, or there shall be any Aggregate LC Exposure, unless the Required
Lenders shall otherwise consent in writing:
SECTION 5.1. Financial Statements. Infinity shall deliver to each of
the Lenders:
45
(a) within 55 days after the end of each of the first three quarterly
fiscal periods of each fiscal year of Infinity, consolidated statements of
income and cash flows of Infinity and its Consolidated Subsidiaries for
such period and for the period from the beginning of the respective fiscal
year to the end of such period, and the related consolidated balance sheet
as at the end of such period, setting forth in each case in comparative
form the corresponding consolidated figures for the corresponding period in
the preceding fiscal year, accompanied by a certificate of a Financial
Officer of Infinity which certificate shall state that such financial
statements fairly present the consolidated financial condition and results
of operations of Infinity and its Consolidated Subsidiaries in accordance
with GAAP as at the end of, and for, such period, subject to normal year-
end audit adjustments; provided, that the requirement herein for the
furnishing of such quarterly financial statements may be fulfilled by
providing to the Lenders the report of Infinity to the SEC on Form 10-Q for
the applicable quarterly period, accompanied by the officer's certificate
described in the last sentence of this Section 5.1;
(b) within 105 days after the end of each fiscal year of Infinity,
consolidated statements of income and cash flows of Infinity and its
Consolidated Subsidiaries for such year and the related consolidated
balance sheet as at the end of such year, setting forth in comparative form
the corresponding consolidated figures for the preceding fiscal year, and
accompanied by an opinion thereon (unqualified as to the scope of the
audit) of independent certified public accountants of recognized national
standing, which opinion shall state that such consolidated financial
statements fairly present the consolidated financial condition and results
of operations of Infinity and its Consolidated Subsidiaries as at the end
of, and for, such fiscal year; provided, that the requirement herein for
the furnishing of annual financial statements may be fulfilled by providing
to the Lenders the report of Infinity to the SEC on Form 10-K for the
applicable fiscal year;
(c) promptly upon their becoming publicly available, copies of all
registration statements and regular periodic reports (including without
limitation any and all reports on Form 8-K), if any, which Infinity or any
of its Subsidiaries shall have filed with the SEC or any national
securities exchange;
(d) promptly upon the mailing thereof to the shareholders of Infinity
generally, copies of all financial statements, reports and proxy statements
so mailed;
(e) within 30 days after a Responsible Officer of Infinity knows or
has reason to believe that any of the events or conditions specified below
with respect to any Plan or Multiemployer Plan have occurred or exist which
would reasonably be expected to result in a Material Adverse Effect, a
statement signed by a senior financial officer of Infinity setting forth
details respecting such event or condition and the action, if any, which
Infinity or its ERISA Affiliate proposes to take with respect thereto (and
a copy of any report or notice required to be filed with or given to PBGC
by Infinity or an ERISA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in Section 4043(b) of ERISA
and the regulations issued thereunder, with respect to a Plan, as to
which PBGC has not by regulation waived the requirement of Section
4043(a) of ERISA that it be notified within 30 days of the occurrence
of such event; provided, that a failure to meet the minimum funding
standard of Section 412 of the Code or Section 302 of ERISA shall be a
reportable event regardless of the issuance of any waiver in
accordance with Section 412(d) of the Code;
46
(ii) the filing under Section 4041 of ERISA of a notice of
intent to terminate any Plan or the termination of any Plan;
(iii) the institution by PBGC of proceedings under Section 4042
of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by Infinity or any ERISA
Affiliate of a notice from a Multiemployer Plan that such action has
been taken by PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal by Infinity or any ERISA
Affiliate under Section 4201 or 4204 of ERISA from a Multiemployer
Plan, or the receipt by Infinity or any ERISA Affiliate of notice from
a Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA or that it intends to
terminate or has terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against Infinity or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within 30
days; and
(vi) a failure to make a required installment or other payment
with respect to a Plan (within the meaning of Section 412(n) of the
Code), in which case the notice required hereunder shall be provided
within 10 days after the due date for filing notice of such failure
with the PBGC;
(f) promptly after a Responsible Officer of Infinity knows or has
reason to believe that any Default or Event of Default has occurred, a
notice of such Default or Event of Default describing it in reasonable
detail and, together with such notice or as soon thereafter as possible, a
description of the action that Infinity has taken and proposes to take with
respect thereto;
(g) promptly after a Responsible Officer of Infinity knows that any
change has occurred in Infinity's Debt Rating by either Rating Agency, a
notice describing such change; and
(h) promptly from time to time such other information regarding the
financial condition, operations or business of Infinity or any of its
Subsidiaries (including, without limitation, any Plan or Multiemployer Plan
and any reports or other information required to be filed under ERISA) as
any Lender through the Administrative Agent may reasonably request.
Infinity will furnish to the Administrative Agent and each Lender, at the time
it furnishes each set of financial statements pursuant to paragraph (a) or (b)
above, a certificate (which may be a copy in the case of each Lender) of a
Financial Officer of Infinity (a "Compliance Certificate") (i) to the effect
that no Default or Event of Default has occurred and is continuing (or, if any
Default or Event of Default has occurred and is continuing, describing it in
reasonable detail and describing the action that Infinity has taken and proposes
to take with respect thereto), and (ii) setting forth in reasonable detail the
computations (including any pro forma calculations as described in Section
1.2(c)) necessary to determine whether Infinity is in compliance with the
Financial Covenants as of the end of the respective quarterly fiscal period or
fiscal year. Each Lender hereby agrees that Infinity may, in its discretion,
provide any notice, report or other information to be provided pursuant to this
Section 5.1 to such Lender by (i) electronic mail to the electronic mail address
provided by such Lender and/or (ii) through access to a web site.
47
SECTION 5.2. Corporate Existence, Etc. Infinity will, and will cause
each of its Material Subsidiaries to, preserve and maintain its legal existence
and all of its material rights, privileges and franchises (provided that (a)
nothing in this Section 5.2 shall prohibit any transaction expressly permitted
under Section 5.4 and (b) Infinity or such Material Subsidiary shall not be
required to preserve or maintain any such right, privilege or franchise if the
Board of Directors of Infinity or such Material Subsidiary, as the case may be,
shall determine that the preservation or maintenance thereof is no longer
desirable in the conduct of the business of Infinity or such Material
Subsidiary, as the case may be); comply with the requirements of all applicable
laws, rules, regulations and orders of Governmental Authorities (including,
without limitation, all Environmental Laws) and with all contractual obligations
if failure to comply with such requirements or obligations would reasonably be
expected to result in a Material Adverse Effect; pay and discharge all material
taxes, assessments, governmental charges, levies or other obligations of
whatever nature imposed on it or on its income or profits or on any of its
Property prior to the date on which penalties attach thereto, except for any
such tax, assessment, charge, levy or other obligation the payment of which is
being contested in good faith and by proper proceedings and against which
adequate reserves are being maintained; maintain all its Property used or useful
in its business in good working order and condition, ordinary wear and tear
excepted, all as in the judgment of Infinity or such Material Subsidiary may be
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times (provided that Infinity or
such Material Subsidiary shall not be required to maintain any such Property if
the failure to maintain any such Property is, in the judgment of Infinity or
such Material Subsidiary, desirable in the conduct of the business of Infinity
or such Material Subsidiary); keep proper books of records and accounts in which
entries that are full, true and correct in all material respects shall be made
in conformity with GAAP; and permit representatives of any Lender, during normal
business hours upon reasonable advance notice, to inspect any of its books and
records and to discuss its business and affairs with its Financial Officers or
their designees, all to the extent reasonably requested by such Lender.
SECTION 5.3. Insurance. Infinity will, and will cause each of its
Material Subsidiaries to, keep insured by financially sound and reputable
insurers all Property of a character usually insured by corporations engaged in
the same or similar business and similarly situated against loss or damage of
the kinds and in the amounts consistent with prudent business practice and carry
such other insurance as is consistent with prudent business practice (it being
understood that self-insurance shall be permitted to the extent consistent with
prudent business practice).
SECTION 5.4. Prohibition of Fundamental Changes. Infinity will not,
and will not permit any of its Material Subsidiaries to (i) enter into any
transaction of merger, consolidation, liquidation or dissolution or (ii) Dispose
of, in one transaction or a series of related transactions, all or a substantial
part (determined by reference to Infinity and its Subsidiaries taken as a whole)
of its business or Property, whether now owned or hereafter acquired (excluding
(x) financings by way of sales of receivables or inventory, (y) inventory or
other Property Disposed of in the ordinary course of business and (z) obsolete
or worn-out Property, tools or equipments no longer used or useful in its
business). Notwithstanding the foregoing provisions of this Section 5.4:
(a) any Subsidiary of Infinity may be merged or consolidated with or
into: (i) Infinity if Infinity shall be the continuing or surviving
corporation or (ii) any other such Subsidiary; provided, that (x) if any
such transaction shall be between a Subsidiary and a Wholly Owned
Subsidiary, such Wholly Owned Subsidiary shall be the continuing or
surviving corporation and (y) if any such transaction shall be between a
Subsidiary and a Subsidiary Borrower, the continuing or surviving
corporation shall be a Subsidiary Borrower;
48
(b) any Subsidiary of Infinity may distribute, dividend or Dispose of
any of or all its Property (upon voluntary liquidation or otherwise) to
Infinity or a Wholly Owned Subsidiary of Infinity;
(c) Infinity may merge or consolidate with or into any other Person
if (i) either (x) Infinity is the continuing or surviving corporation or
(y) the corporation formed by such consolidation or into which Infinity is
merged shall be a corporation organized under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume the obligations of Infinity hereunder pursuant to a
written agreement and shall have delivered to the Administrative Agent such
agreement and a certificate of a Responsible Officer and an opinion of
counsel to the effect that such merger or consolidation complies with this
Section 5.4(c), and (ii) after giving effect thereto and to any repayment
of Loans to be made upon consummation thereof (it being expressly
understood that no repayment of Loans is required solely by virtue
thereof), no Default or Event of Default shall have occurred and be
continuing;
(d) any Subsidiary of Infinity may merge or consolidate with or into
any other Person if, after giving effect thereto and to any repayment of
Loans to be made upon the consummation thereof (it being expressly
understood that, except as otherwise expressly provided in Section 4.2 with
respect to Subsidiary Borrowers, no repayment of Loans is required solely
by virtue thereof), no Default or Event of Default shall have occurred and
be continuing; and
(e) Infinity or any Subsidiary of Infinity may Dispose of its
Property if, after giving effect thereto and to any repayment of Loans to
be made upon the consummation thereof (it being expressly understood that,
except as otherwise expressly provided in Section 4.2 with respect to
Subsidiary Borrowers, no repayment of Loans is required solely by virtue
thereof), no Default or Event of Default shall have occurred and be
continuing.
SECTION 5.5. Limitation on Liens. Infinity will not, and will not
permit any of its Material Subsidiaries to, create, incur, assume or suffer to
exist any Lien upon any of its Property, or enter into any Sale/Leaseback with
respect to any such Property, whether now owned or hereafter acquired; provided,
that the foregoing restrictions shall not apply to:
(a) Liens imposed by any Governmental Authority for taxes,
assessments or charges not yet due and payable or which are being contested
in good faith and by appropriate proceedings if adequate reserves with
respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, architects' or other like Liens arising in the ordinary course
of business which are not overdue for a period of more than 30 days or
which are being contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal of any order or
decree but only to the extent, for an amount and for a period not resulting
in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(e) pledges or deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations to
secure surety, appeal or performance bonds and
49
contractual and other obligations of a like nature incurred in the ordinary
course of business and not involving the borrowing of money;
(f) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the
use of Property or minor imperfections in title thereto and Liens under
leases and subleases which, in the aggregate, are not material in amount,
and which do not interfere in any material respects with the ordinary
conduct of the business of Infinity and its Subsidiaries taken as a whole;
(g) Liens on Property of any Subsidiary of Infinity or of any Person
which is or was merged with or into Infinity or any Subsidiary thereof;
provided, that such Liens are or were in existence at the time such Person
becomes or became a Subsidiary of Infinity or such Person merged with or
into Infinity or any Subsidiary thereof, as the case may be, were not
created in anticipation thereof other than to finance the purchase thereof
and are not spread to cover any Property other than the Property covered at
the time of the relevant transaction;
(h) Liens upon real and/or personal property acquired (by purchase,
construction, foreclosure, deed in lieu of foreclosure or otherwise) by
Infinity or any of its Subsidiaries, each of which Liens either (A) existed
on such Property before the time of its acquisition and was not created in
anticipation thereof or (B) was created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund, all
or a part of the cost (including the cost of construction) of such Property
or improvements thereon; provided, that no such Lien shall extend to or
cover any Property of Infinity or such Subsidiary other than the respective
Property so acquired and improvements thereon;
(i) mortgages on Property securing indebtedness in favor of the
United States of America or any state thereof or any department, agency or
instrumentality or political subdivision of the United States of America or
any state thereof, incurred for the purpose of financing all or any part of
the purchase price or the cost of construction of the Property subject to
such mortgages (including without limitation such debt secured by such
mortgages in connection with pollution control, industrial revenue or
similar financings) or incurred to secure progress, advance or other
payments pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any Wholly
Owned Subsidiary of Infinity;
(k) Liens (i) upon the receivables and inventory of Infinity or any
of its Subsidiaries to secure Indebtedness resulting from financings of
such receivables and inventory in an aggregate amount not greater than
$400,000,000 less the aggregate amount of Indebtedness that is secured
pursuant to clause (ii) below; provided, that the terms of such
Indebtedness do not provide for any recourse to Infinity or any Material
Subsidiary (except to the extent of breaches of representations and
warranties of Infinity or any of its Subsidiaries in connection with such
financings and other recourse customary in connection with "off-balance
sheet" financings) and (ii) upon the Property of Infinity to secure
Indebtedness of Infinity in an aggregate amount not greater than
$125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing Date;
50
(m) any Sale/Leaseback of assets of Infinity owned on the Closing
Date and listed on Schedule 5.5(m);
(n) additional Liens upon real and/or personal property, and
additional Sale/Leasebacks; provided, that the sum of (i) the aggregate
principal amount of the obligations secured by such Liens (other than
Indebtedness as defined in clause (f) of the definition thereof which has
not been assumed by Infinity or any of its Subsidiaries and where the Lien
relates to Property acquired by Infinity or any of its Subsidiaries in
satisfaction, in whole or in part, of indebtedness to Infinity or any of
its Subsidiaries, in the ordinary course of business (any such
Indebtedness, "Specified Section 5.5(n) Indebtedness")) and (ii) the
aggregate Sale/Leaseback Attributable Debt with respect to such
Sale/Leasebacks shall not exceed $125,000,000 at any one time outstanding;
and
(o) any extension, renewal or replacement of the foregoing; provided,
however, that, except to the extent otherwise permitted by this Section 5.5
(including Section 5.5(n)), the Liens permitted under this paragraph shall
not be spread to cover any additional Indebtedness or Property (other than
a substitution of like Property or improvements on such Property or other
Property of equivalent value).
SECTION 5.6. Limitation on Subsidiary Indebtedness. Infinity will
not permit any of its Subsidiaries to create, incur, assume or suffer to exist
any Indebtedness (which includes, for the purposes of this Section 5.6, any
preferred stock), except (i) Excluded Indebtedness, (ii) Indebtedness of any
Subsidiary Borrower under this Agreement, (iii) Indebtedness incurred on any
date when, after giving effect thereto, the aggregate principal amount of
Indebtedness incurred pursuant to this clause (iii) that is outstanding on such
date (it being understood that, for the purposes of this clause (iii), the term
"Indebtedness" does not include borrowings under this Agreement or under the
Existing Credit Agreement or under the 364-Day Credit Agreement or Excluded
Indebtedness) does not exceed $600,000,000 at any time and (iv) Indebtedness
existing at any time under the Existing Infinity Credit Agreement or under the
364-Day Credit Agreement.
SECTION 5.7. Consolidated Leverage Ratio. Infinity will not permit
the Consolidated Leverage Ratio at the end of any fiscal quarter to be greater
than .60 to 1.00; provided, as soon as, and for so long as, the Debt Rating is
equal to or greater than A- by S&P and A3 by ▇▇▇▇▇'▇ for any period this Section
5.7 shall be suspended.
SECTION 5.8. Consolidated Coverage Ratio. Infinity will not permit
the Consolidated Coverage Ratio for any period of four consecutive fiscal
quarters to be less than 3.00 to 1.00; provided, as soon as, and for so long as,
the Debt Rating is equal to or greater than A- by S&P and A3 by ▇▇▇▇▇'▇ for any
period this Section 5.8 shall be suspended.
SECTION 5.9. Use of Proceeds. On and after the Closing Date, each
Borrower will use the proceeds of the Loans and will use the Letters of Credit
hereunder solely for general corporate purposes, including, without limitation,
acquisitions and commercial paper backup (in each case in compliance with all
applicable legal and regulatory requirements, including, without limitation,
Regulation U and the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as amended, and the regulations thereunder); provided,
that neither any Agent nor any Lender shall have any responsibility as to the
use of any of such proceeds.
SECTION 5.10. Transactions with Affiliates. Excepting transactions
directly or indirectly entered into pursuant to any agreement entered into prior
to the Closing Date, or transactions
51
contemplated by any agreement (including without limitation the Intercompany
Agreement, dated December 15, 1998, and the Tax Sharing Agreement, dated
December 15, 1998, each between Infinity and CBS) directly or indirectly entered
into prior to the Closing Date, Infinity will not, and will not permit any of
its Material Subsidiaries to, directly or indirectly enter into any material
transaction with any Affiliate of Infinity, including CBS or, following the
consummation of the Viacom Merger, Viacom, except on terms at least as favorable
to Infinity or such Subsidiary as it could obtain on an arm's-length basis.
ARTICLE VI.
EVENTS OF DEFAULT.
In case of the happening of any of the following events ("Events of
Default"):
(a) (i) any Borrower shall default in the payment when due of any
principal of any Loan or (ii) any Borrower shall default in the payment
when due of any interest on any Loan, any reimbursement obligation in
respect of any LC Disbursement, any Fee or any other amount payable by it
hereunder and, in the case of this clause (ii), such default shall continue
unremedied for a period of five Business Days;
(b) any representation, warranty or certification made or deemed made
herein (or in any modification or supplement hereto) by any Borrower, or
any certificate furnished to any Lender or the Administrative Agent
pursuant to the provisions hereof, shall prove to have been false or
misleading in any material respect as of the time made, deemed made or
furnished;
(c) (i) Infinity shall default in the performance of any of its
obligations under Section 5.1(f), Section 5.4, Section 5.5 or Sections 5.7
through 5.9 (inclusive) or (ii) Infinity shall default in the performance
of any of its other obligations under this Agreement and, in the case of
this clause (ii), such default shall continue unremedied for a period of 15
days after notice thereof to Infinity by the Administrative Agent or the
Required Lenders (through the Administrative Agent);
(d) Infinity or any of its Subsidiaries shall (i) fail to pay at
maturity any Indebtedness in an aggregate amount in excess of $100,000,000,
or (ii) fail to make any payment (whether of principal, interest or
otherwise), regardless of amount, due in respect of, or fail to observe or
perform any other term, covenant, condition or agreement contained in any
agreement or instrument evidencing or governing, any such Indebtedness, in
excess of $100,000,000 if the effect of any failure referred to in this
clause (ii) (x) is to cause, or to permit the holder or holders of such
Indebtedness or a trustee on its or their behalf to cause, such
Indebtedness to become due prior to its stated maturity (provided, that
this subclause (ii)(x) shall not apply to any provision that permits the
holders, or a trustee on their behalf, to cause Indebtedness to become due
prior to its stated maturity because of the failure to deliver to such
holders or such trustee financial statements or certificates for any
Subsidiary that is not required by law or regulation to file financial
statements with the SEC, unless such Indebtedness has become due prior to
its stated maturity as a result of such failure) or (y) has caused such
Indebtedness to become due prior to its stated maturity (it being agreed
that for purposes of this paragraph (d) only (other than subclause (ii)(x)
of this paragraph (d)), the term "Indebtedness" shall include obligations
under any interest rate protection agreement, foreign currency exchange
agreement or other interest or exchange rate hedging agreement and that the
amount of any Person's obligations under any such agreement
52
shall be the net amount that such Person could be required to pay as a
result of a termination thereof by reason of a default thereunder);
(e) Infinity or any of its Material Subsidiaries shall admit in
writing its inability, or be generally unable, to pay its debts as such
debts become due;
(f) Infinity or any of its Material Subsidiaries shall (i) apply for
or consent to the appointment of, or the taking of possession by, a
receiver, trustee or liquidator of itself or of all or a substantial part
of its Property, (ii) make a general assignment for the benefit of its
creditors, (iii) commence a voluntary case under the Bankruptcy Code (as
now or hereafter in effect), (iv) file a petition seeking to take advantage
of any other law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or readjustment of debts, (v) fail to controvert
in a timely and appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case under the Bankruptcy Code,
or (vi) take any corporate action for the purpose of effecting any of the
foregoing;
(g) a proceeding or a case shall be commenced, without the
application or consent of Infinity or any of its Material Subsidiaries, in
any court of competent jurisdiction, seeking (i) its liquidation,
reorganization, dissolution or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of Infinity or such Material Subsidiary
or of all or any substantial part of its assets or (iii) similar relief in
respect of Infinity or such Material Subsidiary under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of
the foregoing shall be entered and continue unstayed and in effect, for a
period of 60 or more days; or an order for relief against Infinity or such
Material Subsidiary shall be entered in an involuntary case under the
Bankruptcy Code;
(h) a final judgment or judgments for the payment of money in excess
of $100,000,000 in the aggregate shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against
Infinity and/or any of its Material Subsidiaries and the same shall not be
paid or discharged (or provision shall not be made for such discharge), or
a stay of execution thereof shall not be procured, within 60 days from the
date of the date of entry thereof and Infinity or the relevant Material
Subsidiary shall not, within said period of 60 days, or such longer period
during which execution of the same shall have been stayed, appeal therefrom
and cause the execution thereof to be stayed during such appeal;
(i) an event or condition specified in Section 5.1(e) shall occur or
exist with respect to any Plan or Multiemployer Plan and, as a result of
such event or condition, together with all other such events or conditions,
Infinity or any ERISA Affiliate shall incur or in the good faith opinion of
the Required Lenders shall be reasonably likely to incur a liability to a
Plan, a Multiemployer Plan or PBGC (or any combination of the foregoing)
which would constitute, in the good faith determination of the Required
Lenders, a Material Adverse Effect;
(j) a Change of Control shall have occurred or, with respect to any
period of 25 consecutive calendar months (whether commencing before or
after the date of this Agreement, but not before December 31, 1999),
individuals who were directors of Infinity on the first day of such period
or who were nominated by such directors (or by directors in a direct chain
of directors so
53
nominated) shall no longer occupy a majority of the seats (other than
vacant seats) on the Board of Directors of Infinity (excluding by reason of
the death or retirement of any director); or
(k) The guarantee by Infinity contained in Article VIII shall cease,
for any reason, to be in full force and effect or Infinity shall so assert;
then and in every such event (other than an event with respect to Infinity
described in paragraph (f) or (g) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to Infinity, take any or all of the
following actions, at the same or different times: (I) terminate forthwith the
Commitments, (II) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of each Borrower accrued hereunder, shall
become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by each
Borrower, anything contained herein to the contrary notwithstanding, and (III)
require that Infinity deposit cash with the Administrative Agent, in an amount
equal to the Aggregate LC Exposure, as collateral security for the repayment of
any future LC Disbursements; and in any event with respect to any Borrower
described in paragraph (f) or (g) above, (A) if such Borrower is Infinity, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of each Borrower accrued hereunder, shall
automatically become due and payable and Infinity shall be required to deposit
cash with the Administrative Agent, in an amount equal to the Aggregate LC
Exposure, as collateral security for the repayment of any future drawings under
the Letters of Credit and (B) if such Borrower is a Subsidiary Borrower, the
principal of the Loans made to such Subsidiary Borrower then outstanding,
together with accrued interest thereon and all other liabilities of such
Subsidiary Borrower accrued hereunder, shall automatically become due and
payable, in each case without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by each Borrower, anything
contained herein to the contrary notwithstanding.
ARTICLE VII.
THE AGENTS
In order to expedite the transactions contemplated by this Agreement,
each Agent is hereby appointed to act as Agent on behalf of the Lenders. Each
of the Lenders and the Issuing Lenders hereby irrevocably authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are specifically delegated to the Administrative Agent by the terms
and provisions hereof, together with such actions and powers as are reasonably
incidental thereto. The Administrative Agent is hereby expressly authorized by
the Lenders and the Issuing Lenders, without hereby limiting any implied
authority, (a) to receive on behalf of the Lenders all payments of principal of
and interest on the Loans and the LC Disbursements and all other amounts due to
the Lenders and Issuing Lenders hereunder, and promptly to distribute to each
Lender and Issuing Lender its proper share of each payment so received; (b) to
give notice on behalf of each of the Lenders to the Borrowers of any Event of
Default specified in this Agreement of which the Administrative Agent has actual
knowledge acquired in connection with its agency hereunder; and (c) to
distribute to each Lender and Issuing Lender copies of all notices, financial
statements and other materials delivered by any Borrower pursuant to this
Agreement as received by the Administrative Agent.
54
Neither any Agent nor any of its directors, officers, employees or
agents shall be liable as such for any action taken or omitted by any of them
except for its or his own gross negligence or wilful misconduct, or be
responsible for any statement, warranty or representation herein or the contents
of any document delivered in connection herewith, or be required to ascertain or
to make any inquiry concerning the performance or observance by any Borrower of
any of the terms, conditions, covenants or agreements contained in this
Agreement. The Agents shall not be responsible to the Lenders for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement or other instruments or agreements. The Administrative Agent shall in
all cases be fully protected in acting, or refraining from acting, in accordance
with written instructions signed by the Required Lenders (or, when expressly
required hereby, all the Lenders) and, except as otherwise specifically provided
herein, such instructions and any action or inaction pursuant thereto shall be
binding on all the Lenders and the Issuing Lenders. The Administrative Agent
shall, in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper Person or Persons. Neither the
Agents nor any of their directors, officers, employees or agents shall have any
responsibility to any Borrower on account of the failure of or delay in
performance or breach by any Lender or Issuing Lender of any of its obligations
hereunder or to any Lender or Issuing Lender on account of the failure of or
delay in performance or breach by any other Agent, any other Lender or Issuing
Lender or any Borrower of any of their respective obligations hereunder or in
connection herewith. The Administrative Agent may execute any and all duties
hereunder by or through agents or employees and shall be entitled to rely upon
the advice of legal counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or suffered in good faith
by it in accordance with the advice of such counsel.
The Lenders and the Issuing Lenders hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement unless
it shall be requested in writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon
any such resignation, the Required Lenders shall have the right to appoint from
the Lenders a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint from the
Lenders a successor Administrative Agent which shall be a bank with an office in
New York, New York, having a combined capital and surplus of at least
$500,000,000 or an affiliate of any such bank, which successor shall be
acceptable to Infinity (such acceptance not to be unreasonably withheld). Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor bank, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After the Administrative Agent's resignation hereunder,
the provisions of this Article and Section 9.5 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
With respect to the Loans made by them and their LC Exposure
hereunder, the Agents in their individual capacity and not as Agents shall have
the same rights and powers as any other Lender and may exercise the same as
though they were not Agents, and the Agents and their affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrowers or any of their respective Subsidiaries or any Affiliate thereof
as if they were not Agents.
55
Each Lender and Issuing Lender agrees (i) to reimburse the
Administrative Agent in the amount of its pro rata share (based on its Total
Facility Percentage or, after the date on which the Loans shall have been paid
in full, based on its Total Facility Percentage immediately prior to such date)
of any reasonable, out-of-pocket expenses incurred for the benefit of the
Lenders or the Issuing Lenders by the Administrative Agent, including reasonable
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders or the Issuing Lenders, which shall not have been
reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold
harmless the Administrative Agent and any of its directors, officers, employees
or agents, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against it in its capacity as
Administrative Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by it under this Agreement, to the extent the same
shall not have been reimbursed by or on behalf of Infinity; provided, that no
Lender or Issuing Lender shall be liable to the Administrative Agent or any such
director, officer, employee or agent for any portion of such liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent or any of its directors, officers,
employees or agents.
Each Lender and Issuing Lender acknowledges that it has, independently
and without reliance upon the Agents or any other Lender or Issuing Lender and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender and
Issuing Lender also acknowledges that it will, independently and without
reliance upon any Agent or any other Lender or Issuing Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder
or thereunder.
Neither the Documentation Agent, the Co-Syndication Agents, the
Arrangers nor any managing agent shall have any duties or responsibilities
hereunder in its capacity as such.
ARTICLE VIII.
GUARANTEE
SECTION 8.1. Guarantee. In order to induce the Administrative Agent
and the Lenders to become bound by this Agreement and to make the Loans
hereunder to the Subsidiary Borrowers, and in consideration thereof, Infinity
hereby unconditionally and irrevocably guarantees, as primary obligor and not
merely as surety, to the Administrative Agent, for the ratable benefit of the
Lenders, the prompt and complete payment and performance by each Subsidiary
Borrower when due (whether at stated maturity, by acceleration or otherwise) of
the Subsidiary Borrower Obligations, and Infinity further agrees to pay any and
all expenses (including, without limitation, all reasonable fees, charges and
disbursements of counsel) which may be paid or incurred by the Administrative
Agent or by the Lenders in enforcing, or obtaining advice of counsel in respect
of, any of their rights under the guarantee contained in this Article VIII. The
guarantee contained in this Article VIII, subject to Section 8.5, shall remain
in full force and effect until the Subsidiary Borrower Obligations are paid in
full and the Commitments are terminated, notwithstanding that from time to time
prior thereto any Subsidiary Borrower may be free from any Subsidiary Borrower
Obligations.
56
Infinity agrees that whenever, at any time, or from time to time, it
shall make any payment to the Administrative Agent or any Lender on account of
its liability under this Article VIII, it will notify the Administrative Agent
and such Lender in writing that such payment is made under the guarantee
contained in this Article VIII for such purpose. No payment or payments made by
any Subsidiary Borrower or any other Person or received or collected by the
Administrative Agent or any Lender from any Subsidiary Borrower or any other
Person by virtue of any action or proceeding or any setoff or appropriation or
application, at any time or from time to time, in reduction of or in payment of
the Subsidiary Borrower Obligations shall be deemed to modify, reduce, release
or otherwise affect the liability of Infinity under this Article VIII which,
notwithstanding any such payment or payments, shall remain liable for the unpaid
and outstanding Subsidiary Borrower Obligations until, subject to Section 8.5,
the Subsidiary Borrower Obligations are paid in full and the Commitments are
terminated.
SECTION 8.2. No Subrogation, etc. Notwithstanding any payment or
payments made by Infinity hereunder, or any set-off or application of funds of
Infinity by the Administrative Agent or any Lender, Infinity shall not be
entitled to be subrogated to any of the rights of the Administrative Agent or
any Lender against any Subsidiary Borrower or against any collateral security or
guarantee or right of offset held by the Administrative Agent or any Lender for
the payment of the Subsidiary Borrower Obligations, nor shall Infinity seek or
be entitled to seek any contribution, reimbursement, exoneration or indemnity
from or against any Subsidiary Borrower in respect of payments made by Infinity
hereunder, until all amounts owing to the Administrative Agent and the Lenders
by the Subsidiary Borrowers on account of the Subsidiary Borrower Obligations
are paid in full and the Commitments are terminated. So long as the Subsidiary
Borrower Obligations remain outstanding, if any amount shall be paid by or on
behalf of any Subsidiary Borrower or any other Person to Infinity on account of
any of the rights waived in this Section 8.2, such amount shall be held by
Infinity in trust, segregated from other funds of Infinity, and shall, forthwith
upon receipt by Infinity, be turned over to the Administrative Agent in the
exact form received by Infinity (duly indorsed by Infinity to the Administrative
Agent, if required), to be applied against the Subsidiary Borrower Obligations,
whether matured or unmatured, in such order as the Administrative Agent may
determine.
SECTION 8.3. Amendments, etc. with respect to the Subsidiary Borrower
Obligations. Infinity shall remain obligated under this Article VIII
notwithstanding that, without any reservation of rights against Infinity, and
without notice to or further assent by Infinity, any demand for payment of or
reduction in the principal amount of any of the Subsidiary Borrower Obligations
made by the Administrative Agent or any Lender may be rescinded by the
Administrative Agent or such Lender, and any of the Subsidiary Borrower
Obligations continued, and the Subsidiary Borrower Obligations, or the liability
of any other party upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or any
Lender, and this Agreement and any other documents executed and delivered in
connection herewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Required Lenders (or all Lenders, as the case may be)
may deem advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by the Administrative Agent or any Lender for
the payment of the Subsidiary Borrower Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Administrative Agent nor any
Lender shall have any obligation to protect, secure, perfect or insure any lien
at any time held by it as security for the Subsidiary Borrower Obligations or
for the guarantee contained in this Article VIII or any property subject
thereto.
SECTION 8.4. Guarantee Absolute and Unconditional. Infinity waives
any and all notice of the creation, renewal, extension or accrual of any of the
Subsidiary Borrower Obligations and
57
notice of or proof of reliance by the Administrative Agent or any Lender upon
the guarantee contained in this Article VIII or acceptance of the guarantee
contained in this Article VIII; the Subsidiary Borrower Obligations shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon the guarantee contained in this
Article VIII; and all dealings between Infinity or the Subsidiary Borrowers, on
the one hand, and the Administrative Agent and the Lenders, on the other, shall
likewise be conclusively presumed to have been had or consummated in reliance
upon the guarantee contained in this Article VIII. Infinity waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon Infinity or any Subsidiary Borrower with respect to the Subsidiary
Borrower Obligations. The guarantee contained in this Article VIII shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity or enforceability of this Agreement, any of
the Subsidiary Borrower Obligations or any collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Administrative Agent or any Lender, (b) the legality under
applicable requirements of law of repayment by the relevant Subsidiary Borrower
of any Subsidiary Borrower Obligations or the adoption of any requirement of law
purporting to render any Subsidiary Borrower Obligations null and void, (c) any
defense, setoff or counterclaim (other than a defense of payment or performance
by the applicable Subsidiary Borrower) which may at any time be available to or
be asserted by Infinity against the Administrative Agent or any Lender, or (d)
any other circumstance whatsoever (with or without notice to or knowledge of
Infinity or any Subsidiary Borrower) which constitutes, or might be construed to
constitute, an equitable or legal discharge of any Subsidiary Borrower for any
of its Subsidiary Borrower Obligations, or of Infinity under the guarantee
contained in this Article VIII, in bankruptcy or in any other instance. When
the Administrative Agent or any Lender is pursuing its rights and remedies under
this Article VIII against Infinity, the Administrative Agent or any Lender may,
but shall be under no obligation to, pursue such rights and remedies as it may
have against any Subsidiary Borrower or any other Person or against any
collateral security or guarantee for the Subsidiary Borrower Obligations or any
right of offset with respect thereto, and any failure by the Administrative
Agent or any Lender to pursue such other rights or remedies or to collect any
payments from any Subsidiary Borrower or any such other Person or to realize
upon any such collateral security or guarantee or to exercise any such right of
offset, or any release of any Subsidiary Borrower or any such other Person or of
any such collateral security, guarantee or right of offset, shall not relieve
Infinity of any liability under this Article VIII, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Administrative Agent and the Lenders against Infinity.
SECTION 8.5. Reinstatement. The guarantee contained in this Article
VIII shall continue to be effective, or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any of the Subsidiary Borrower
Obligations is rescinded or must otherwise be restored or returned by the
Administrative Agent or any Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of any Subsidiary Borrower or upon or as a result
of the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, any Subsidiary Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
SECTION 8.6. Payments. Infinity hereby agrees that any payments in
respect of the Subsidiary Borrower Obligations pursuant to this Article VIII
will be paid to the Administrative Agent without setoff or counterclaim in
Dollars at the office of the Administrative Agent specified in Section 9.1.
58
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. Notices. Notices and other communications provided for
herein shall be in writing (or, where permitted to be made by telephone, shall
be confirmed promptly in writing) and shall be delivered by hand or overnight
courier service, mailed or sent by telecopier as follows:
(a) if to Infinity, to it at Infinity Broadcasting Corporation, ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Chief Financial
Officer and Treasurer (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to General
Counsel (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to it at The Chase Manhattan
Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(Telecopy No. 212-270-1204), with a copy to The Chase Manhattan Bank, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(Telecopy No. 212-552-5700);
(c) if to any Issuing Lender, to it at the address for notices
specified in the applicable Issuing Lender Agreement;
(d) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 1.1 or in the Assignment and Acceptance pursuant to which
such Lender shall have become a party hereto; and
(e) if to a Subsidiary Borrower, to it at its address set forth in
the relevant Subsidiary Request.
Notwithstanding the foregoing, each of Infinity, the Administrative Agent and
the Issuing Lender may, in its discretion, provide any notice, report or other
information to be provided under this Agreement to a Lender by (i) electronic
mail to the electronic mail address provided by such Lender in its
Administrative Questionnaire and/or (ii) through access to a web site. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on (A) the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or electronic mail, (B) the date of posting if given by web site
access, (C) the date of such telephone call, if permitted by the terms hereof
and if promptly confirmed in writing, or (D) on the date five Business Days
after dispatch by registered mail if mailed, in each case delivered, sent or
mailed (properly addressed) to such party as provided in this Section 9.1 or in
accordance with the latest unrevoked direction from such party given in
accordance with this Section 9.1.
SECTION 9.2. Survival of Agreement. All representations and
warranties made hereunder and in any certificate delivered pursuant hereto or in
connection herewith shall be considered to have been relied upon by the Agents
and the Lenders and shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder, regardless
of any investigation made by the Agents or the Lenders or on their behalf.
SECTION 9.3. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of each Borrower, each Agent and each Lender and their
respective successors and assigns, except
59
that Infinity shall not have the right to assign its rights or obligations
hereunder or any interest herein without the prior consent of all the Lenders.
SECTION 9.4. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party, and all covenants, promises
and agreements by or on behalf of each Borrower, any Agent or any Lender that
are contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion
of its interests, rights and obligations under this Agreement (including all or
a portion of its Commitment or Swingline Commitment and the Loans at the time
owing to it); provided, however, that (i) except in the case of an assignment to
a Lender or an affiliate of such Lender (other than if at the time of such
assignment, such Lender or affiliate would be entitled to require any Borrower
to pay greater amounts under Section 2.20(a) than if no such assignment had
occurred, in which case such assignment shall be subject to the consent
requirement of this clause (i)), Infinity and the Administrative Agent must give
their prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) (x) except in the case of assignments to any Person
that is a Lender prior to giving effect to such assignment, the amount of the
aggregate Commitments and/or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $10,000,000 and (y) the amount of the aggregate Commitments and/or Loans
retained by any assigning Lender (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $10,000,000, unless (in the case of clause (x) or
(y) above) the assigning Lender's Commitment and Loans (other than any
Competitive Loans) are being reduced to $0 pursuant to such assignment, (iii)
the assignor and assignee shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, together with a processing and recordation fee of
$3,500 and (iv) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to Section 9.4(e), from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five Business Days after the execution thereof (or any lesser period to
which the Administrative Agent and Infinity may agree), (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto (but shall continue to be entitled to the benefits of Sections 2.15,
2.16, 2.20 and 9.5, as well as to any Fees accrued for its account hereunder and
not yet paid)). Notwithstanding the foregoing, any Lender or Issuing Lender
assigning its rights and obligations under this Agreement may maintain any
Competitive Loans or Letters of Credit made or issued by it outstanding at such
time, and in such case shall retain its rights hereunder in respect of any Loans
or Letters of Credit so maintained until such Loans or Letters of Credit have
been repaid or terminated in accordance with this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim, (ii)
except as set forth in clause (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or
60
any other instrument or document furnished pursuant hereto, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto or the
financial condition of Infinity or any of its Subsidiaries or the performance or
observance by Infinity or any of its Subsidiaries of any of its obligations
under this Agreement or any other instrument or document furnished pursuant
hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the most recent financial statements delivered pursuant to Sections 3.2 and 5.1
and such other documents and information as it has deemed appropriate to make it
own credit analysis and decision to enter into such Assignment and Acceptance;
(v) such assignee will independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Agent or Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as agent of
each Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive in the absence of manifest error and each Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by any Borrower and any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of Infinity and the
Administrative Agent to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to Infinity.
(f) Each Lender may without the consent of any Borrower or the Agents
sell participations to one or more banks, other financial institutions or other
entities (provided, that any such other entity is a not a competitor of Infinity
or any Affiliate of Infinity) all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitments and the
Loans owing to it); provided, however, that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(ii) the participating banks or other entities shall be entitled to the benefit
of the cost protection provisions contained in Sections 2.15, 2.16 and 2.20 to
the same extent as if they were Lenders (provided, that additional amounts
payable to any Lender pursuant to Section 2.20 shall be determined as if such
Lender had not sold any such participations) and (iv) the Borrowers, the Agents
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of each Borrower relating to the Loans and the Letters of Credit and
to approve any amendment, modification or waiver of any provision of this
Agreement (other than amendments,
61
modifications or waivers decreasing any fees payable hereunder or the amount of
principal of or the rate at which interest is payable on the Loans or LC
Disbursements, extending any scheduled principal payment date or date fixed for
the payment of interest on the Loans or LC Disbursements or of LC Fees or
Commitment Fees, increasing the amount of or extending the Commitments or
releasing the guarantee contained in Article VIII, in each case to the extent
the relevant participant is directly affected thereby).
(g) Any Lender or participant may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 9.4, disclose to the assignee or participant or proposed assignee or
participant any information relating to any Borrower furnished to such Lender by
or on behalf of such Borrower; provided, that, prior to any such disclosure of
information designated by such Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute a Confidentiality
Agreement whereby such assignee or participant shall agree (subject to the
exceptions set forth therein) to preserve the confidentiality of such
confidential information. A copy of each such Confidentiality Agreement
executed by an assignee shall be promptly furnished to Infinity. It is
understood that confidential information relating to the Borrowers would not
ordinarily be provided in connection with assignments or participations of
Competitive Loans.
(h) Notwithstanding the limitations set forth in paragraph (b) above,
(i) any Lender may at any time assign or pledge all or any portion of its rights
under this Agreement to a Federal Reserve Bank and (ii) any Lender which is a
"fund" may at any time assign or pledge all or any portion of its rights under
this Agreement to secure such Lender's indebtedness, in each case without the
prior written consent of any Borrower or the Administrative Agent; provided,
that each such assignment shall be made in accordance with applicable law and no
such assignment shall release a Lender from any of its obligations hereunder.
In order to facilitate any such assignment, each Borrower shall, at the request
of the assigning Lender, duly execute and deliver to the assigning Lender a
registered promissory note or notes evidencing the Loans made to such Borrower
by the assigning Lender hereunder.
(i) Notwithstanding anything to the contrary contained herein, any
Bank (a "Granting Bank") may grant to a special purpose funding vehicle (a
"SPC"), identified as such in writing from time to time by the Granting Bank to
the Administrative Agent and the Borrower, the option to provide to the Borrower
all or any part of any Loan that such Granting Bank would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided, that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan, and (ii) if an
SPC elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Bank shall be obligated to make such Loan
pursuant to the terms hereof. The making of an Loan by an SPC hereunder shall
utilize the Commitment of the Granting Bank to the same extent, and as if, such
Loan were made by such Granting Bank. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Bank). In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against, or
join any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section, any SPC may (i) with notice
to, but without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to the Granting Bank or to any
financial institutions (consented to by the Borrower and Administrative Agent )
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency,
62
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC. This section may not be amended without the
written consent of any SPC which has been identified as such by the Granting
Bank to the Administrative Agent and the Borrower and which then holds any Loan
pursuant to this paragraph (i).
(j) Neither Infinity nor any Subsidiary Borrower shall assign or
delegate any of its rights or duties hereunder without the prior consent of all
the Lenders; provided, Infinity may assign or delegate any of its rights or
duties hereunder to any Subsidiary Borrower and any Subsidiary Borrower may
assign or delegate any of its rights or duties hereunder to Infinity or to any
other Subsidiary Borrower, in each case without the prior consent of the
Lenders.
SECTION 9.5. Expenses; Indemnity. (a) Infinity agrees to pay all
reasonable legal and other out-of-pocket expenses incurred by Chase Securities
Inc., in its capacity as a Lead Arranger, and by the Administrative Agent and
their respective Affiliates in connection with the preparation, negotiation,
execution and delivery of this Agreement or in connection with any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions hereby contemplated shall be consummated) or incurred by any Agent,
any Lender or any Issuing Lender in connection with the enforcement or
protection of the rights of the Agents, the Lenders or the Issuing Lenders under
this Agreement or in connection with the Loans made or the Letters of Credit
issued hereunder, including, without limitation, the reasonable fees, charges
and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for Chase Securities
Inc., in its capacity as a Lead Arranger, and the Administrative Agent, and, in
connection with any such enforcement or protection, the reasonable fees, charges
and disbursements of any other counsel for any Agent, Lender or Issuing Lender.
(b) Infinity agrees to indemnify and hold harmless each Agent, each
Lender, each Issuing Lender and each of their respective directors, officers,
employees, affiliates and agents (each, an "Indemnified Person") against, and to
reimburse each Indemnified Person, upon its demand, for, any losses, claims,
damages, liabilities or other expenses ("Losses"), to which such Indemnified
Person becomes subject insofar as such Losses arise out of or in any way relate
to or result from (i) the execution or delivery of this Agreement, any Letter of
Credit or any agreement or instrument contemplated hereby (and any amendment
hereto or thereto), the performance by the parties hereto or thereto of their
respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby or (ii) the use (or proposed use) of
the proceeds of the Loans or other extensions of credit hereunder, including,
without limitation, Losses consisting of reasonable legal, settlement or other
expenses incurred in connection with investigating, defending or participating
in any legal proceeding relating to any of the foregoing (whether or not such
Indemnified Person is a party thereto); provided, that the foregoing will not
apply to any Losses to the extent they are found by a final decision of a court
of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnified Person. No Indemnified Person shall be liable
for any damages arising from the use by others of Information or other materials
obtained through electronic, telecommunications or other information
transmission systems (provided, that the foregoing will not apply to any Losses
to the extent they are found by a final decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Indemnified Person).
(c) The provisions of this Section 9.5 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf of any
Agent or Lender. All amounts under this Section 9.5 shall be payable on written
demand therefor.
63
SECTION 9.6. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Agent and each Lender is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Agent or Lender to or for the credit or the account of any Borrower
against any of and all the obligations of such Borrower now or hereafter
existing under this Agreement or the Administrative Agent Fee Letter held by
such Agent or Lender which shall be due and payable. The rights of each Agent
and each Lender under this Section 9.6 are in addition to other rights and
remedies (including other rights of setoff) which such Agent or Lender may have.
SECTION 9.7. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS
AND PRINCIPLES OF SUCH STATE.
SECTION 9.8. Waivers; Amendment. (a) No failure or delay of any
Agent, any Issuing Lender or any Lender in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Agents, the Issuing Lenders and the Lenders hereunder are cumulative and are
not exclusive of any rights or remedies which they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by any
Borrower from any such provision shall in any event be effective unless the same
shall be permitted by paragraph (b) below, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which given.
No notice or demand on any Borrower in any case shall entitle any Borrower to
any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement in writing entered into by
the Borrowers and the Required Lenders; provided, however, that no such
agreement shall (i), except pursuant to Section 2.13, reduce the amount or
extend the scheduled date of maturity of any Loan or of any installment thereof,
or reduce the stated amount of any LC Disbursement, interest or fee payable
hereunder or extend the scheduled date of any payment thereof or increase the
amount or extend the expiration date of any Commitment of any Lender, in each
case without the prior written consent of each Lender directly affected thereby;
(ii) amend, modify or waive any provision of this Section 9.8(b), or reduce the
percentage specified in the definition of "Required Lenders", release the
guarantee contained in Article VIII or consent to the assignment or delegation
by Infinity or any Subsidiary Borrower of any of its rights and obligations
under this Agreement (except (A) by Infinity to any Subsidiary Borrower or (B)
by any Subsidiary Borrower to Infinity or any other Subsidiary Borrower), in
each case without the prior written consent of all the Lenders; or (iii) amend,
modify or waive any provision of Article VII without the prior written consent
of each Agent affected thereby; provided, further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent, the Swingline Lenders or the Issuing Lenders hereunder in such capacity
without the prior written consent of the Administrative Agent, each Swingline
Lender directly affected thereby or each Issuing Lender directly affected
thereby, as the case may be.
SECTION 9.9. Entire Agreement. This Agreement (together with the
Issuing Lender Agreements, the Subsidiary Borrower Designations and the
Subsidiary Borrower Requests) constitutes the entire contract between the
parties relative to the subject matter hereof. Any previous agreement among
64
the parties with respect to the subject matter hereof is superseded by this
Agreement. Nothing in this Agreement, expressed or implied, is intended to
confer upon any party other than the parties hereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
SECTION 9.10. Waiver of Jury Trial. Each party hereto hereby waives,
to the fullest extent permitted by applicable law, any right it may have to a
trial by jury in respect of any litigation directly or indirectly arising out
of, under or in connection with this Agreement. Each party hereto (a) certifies
that no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver and (b) acknowledges that it
and the other parties hereto have been induced to enter into this Agreement by,
among other things, the mutual waivers and certifications in this Section 9.10.
SECTION 9.11. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 9.12. Counterparts. This Agreement may be executed in two or
more counterparts, each of which constitute an original but all of which when
taken together shall constitute but one contract, and shall become effective as
provided in Section 9.3.
SECTION 9.13. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.14. Jurisdiction; Consent to Service of Process. (a) Each
Borrower hereby irrevocably and unconditionally submits, for itself and its
Property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State court or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Each Subsidiary Borrower designates and directs Infinity at its offices at ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent to receive service of
any and all process and documents on its behalf in any legal action or
proceeding referred to in this Section 9.14 in the State of New York and agrees
that service upon such agent shall constitute valid and effective service upon
such Subsidiary Borrower and that failure of Infinity to give any notice of such
service to any Subsidiary Borrower shall not affect or impair in any way the
validity of such service or of any judgment rendered in any action or proceeding
based thereon. Nothing in this Agreement shall affect any right that any Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against any Borrower or its Properties in the courts of any
jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue
65
of any suit, action or proceeding arising out of or relating to this Agreement
in any New York State or Federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.1. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.15. Confidentiality. (a) Each Lender agrees to keep
confidential and not to disclose (and to cause its affiliates, officers,
directors, employees, agents and representatives to keep confidential and not to
disclose) and, at the request of Infinity (except as provided below or if such
Lender is required to retain any Confidential Information (as defined below)
pursuant to customary internal or banking practices, bank regulations or
applicable law), promptly to return to Infinity or destroy the Confidential
Information and all copies thereof, extracts therefrom and analyses or other
materials based thereon, except that such Lender shall be permitted to disclose
Confidential Information (i) to such of its officers, directors, employees,
agents, affiliates and representatives as need to know such Confidential
Information in connection with such Lender's participation in this Agreement,
each of whom shall be informed by such Lender of the confidential nature of the
Confidential Information and shall agree to be bound by the terms of this
Section 9.15; (ii) to the extent required by applicable laws and regulations or
by any subpoena or similar legal process or requested by any Governmental
Authority or agency having jurisdiction over such Lender; provided, however,
that, except in the case of disclosure to bank regulators or examiners in
accordance with customary banking practices, written notice of each instance in
which Confidential Information is required or requested to be disclosed shall be
furnished to Infinity not less than 30 days prior to the expected date of such
disclosure or, if 30 days' notice is not practicable under the circumstances, as
promptly as practicable under the circumstances; (iii) to the extent such
Confidential Information (A) is or becomes publicly available other than as a
result of a breach of this Agreement, (B) becomes available to such Lender on a
non-confidential basis from a source other than a party to this Agreement or any
other party known to such Lender to be bound by an agreement containing a
provision similar to this Section 9.15 or (C) was available to such Lender on a
non-confidential basis prior to this disclosure to such Lender by a party to
this Agreement or any other party known to such Lender to be bound by an
agreement containing a provision similar to this Section 9.15; (iv) as permitted
by Section 9.4(g); or (v) to the extent Infinity shall have consented to such
disclosure in writing. As used in this Section 9.15, "Confidential Information"
shall mean any materials, documents or information furnished by or on behalf of
any Borrower in connection with this Agreement designated by or on behalf of
such Borrower as confidential.
(b) Each Lender (i) agrees that, except to the extent the conditions
referred to in subclause (A), (B) or (C) of clause (iii) of paragraph (a) above
have been met and as provided in paragraph (c) below, (A) it will use the
Confidential Information only in connection with its participation in this
Agreement and (B) it will not use the Confidential Information in connection
with any other matter or in a manner prohibited by any law, including, without
limitation, the securities laws of the United States and (ii) understands that
breach of this Section 9.15 might seriously prejudice the interest of the
Borrowers and that the Borrowers are entitled to equitable relief, including an
injunction, in the event of such breach.
(c) Notwithstanding anything to the contrary contained in this
Section 9.15, each Agent and each Lender shall be entitled to retain all
Confidential Information for so long as it remains an Agent or a Lender to use
solely for the purposes of servicing the credit and protecting its rights
hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
INFINITY BROADCASTING CORPORATION
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer and Treasurer
THE CHASE MANHATTAN BANK, as Administrative Agent
and as a Lender
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Title: Vice President
BANK OF AMERICA, N.A., as
Co-Syndication Agent and as a Lender
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
FLEET NATIONAL BANK, as
Co-Syndication Agent and as a Lender
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
THE BANK OF NEW YORK, as
Documentation Agent and as a Lender
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
67
BARCLAYS BANK PLC, as a Lender
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
CITIBANK, N.A., as a Lender
By:/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK A.G., NEW YORK BRANCH
and/or Cayman Islands Branch, as a Lender
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED, as
a Lender
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
MELLON BANK, N.A., as a Lender
By:/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Lending Officer
68
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Credit Officer
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH, as a
Lender
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
By:/s/ Pascal Kabemba
----------------------
Name: Pascal Kabemba
Title: Associate Director
69
▇▇▇▇▇▇ COMMERCIAL PAPER INC., as a Lender
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
THE SANWA BANK, LIMITED, as a Lender
By:/s/ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
THE SUMITOMO BANK, LIMITED, as a Lender
By:/s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
BANK ONE, N.A., as a Lender
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
CREDIT SUISSE FIRST BOSTON, as a Lender
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
70
THE NORINCHUKIN BANK, NEW YORK BRANCH,
as a Lender
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: General Manager
WACHOVIA BANK, N.A., as a Lender
By:/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
