EXHIBIT 10.4
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$500,000,000
364-DAY 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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ARTICLE I.
DEFINITIONS......................................................................... 1
SECTION 1.1. Defined Terms.......................................................... 1
SECTION 1.2. Terms Generally........................................................ 13
ARTICLE II.
THE CREDITS......................................................................... 14
SECTION 2.1. Commitments............................................................ 14
SECTION 2.2. Loans.................................................................. 14
SECTION 2.3. Revolving Credit Borrowing Procedure................................... 15
SECTION 2.4. Repayment of Loans..................................................... 15
SECTION 2.5. Conversion and Continuation Options.................................... 15
SECTION 2.6. Fees................................................................... 16
SECTION 2.7. Interest on Loans; Eurodollar Tranches; Etc............................ 16
SECTION 2.8. Default Interest....................................................... 17
SECTION 2.9. Alternate Rate of Interest............................................. 17
SECTION 2.10. Termination, Reduction and Increase of Commitments.................... 17
SECTION 2.11. Optional Prepayments of Loans......................................... 19
SECTION 2.12. Reserve Requirements.................................................. 19
SECTION 2.13. Indemnity............................................................. 20
SECTION 2.14. Pro Rata Treatment; Funding Matters; Evidence of Debt................. 21
SECTION 2.15. Sharing of Setoffs.................................................... 22
SECTION 2.16. Payments.............................................................. 23
SECTION 2.17. Taxes................................................................. 23
SECTION 2.18. Termination or Assignment of Commitments Under Certain Circumstances.. 24
ARTICLE III.
REPRESENTATIONS AND WARRANTIES...................................................... 25
SECTION 3.1. Corporate Existence.................................................... 25
SECTION 3.2. Financial Condition.................................................... 25
SECTION 3.3. Litigation............................................................. 26
SECTION 3.4. No Breach, etc......................................................... 26
SECTION 3.5. Corporate Action....................................................... 26
SECTION 3.6. Approvals.............................................................. 27
SECTION 3.7. ERISA.................................................................. 27
SECTION 3.8. Taxes.................................................................. 27
SECTION 3.9. Investment Company Act................................................. 27
SECTION 3.10. Hazardous Materials................................................... 27
SECTION 3.11. Material Subsidiaries................................................. 27
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SECTION 3.12. No Material Misstatements............................................ 27
SECTION 3.13. Ownership of Property................................................ 27
SECTION 3.14. Intellectual Property................................................ 28
SECTION 3.15. FCC Matters.......................................................... 28
ARTICLE IV.
CONDITIONS OF EFFECTIVENESS AND LENDING............................................ 28
SECTION 4.1. Effectiveness......................................................... 28
SECTION 4.2. Initial Loans to Subsidiary Borrowers................................. 28
SECTION 4.3. All Credit Events..................................................... 29
ARTICLE V.
COVENANTS.......................................................................... 29
SECTION 5.1. Financial Statements.................................................. 29
SECTION 5.2. Corporate Existence, Etc.............................................. 31
SECTION 5.3. Insurance............................................................. 32
SECTION 5.4. Prohibition of Fundamental Changes.................................... 32
SECTION 5.5. Limitation on Liens................................................... 33
SECTION 5.6. Limitation on Subsidiary Indebtedness................................. 35
SECTION 5.7. Consolidated Leverage Ratio........................................... 35
SECTION 5.8. Consolidated Coverage Ratio........................................... 35
SECTION 5.9. Use of Proceeds....................................................... 35
SECTION 5.10. Transactions with Affiliates......................................... 35
ARTICLE VI.
EVENTS OF DEFAULT.................................................................. 36
ARTICLE VII.
THE AGENTS......................................................................... 38
ARTICLE VIII.
GUARANTEE.......................................................................... 40
SECTION 8.1. Guarantee............................................................. 40
SECTION 8.2. No Subrogation, etc................................................... 40
SECTION 8.3. Amendments, etc. with respect to the Subsidiary Borrower Obligations.. 41
SECTION 8.4. Guarantee Absolute and Unconditional.................................. 41
SECTION 8.5. Reinstatement......................................................... 42
SECTION 8.6. Payments.............................................................. 42
ARTICLE IX.
MISCELLANEOUS...................................................................... 42
SECTION 9.1. Notices............................................................... 42
SECTION 9.2. Survival of Agreement................................................. 43
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SECTION 9.3. Binding Effect................................ 43
SECTION 9.4. Successors and Assigns........................ 43
SECTION 9.5. Expenses; Indemnity........................... 46
SECTION 9.6. Right of Setoff............................... 47
SECTION 9.7. APPLICABLE LAW................................ 47
SECTION 9.8. Waivers; Amendment............................ 47
SECTION 9.9. Entire Agreement.............................. 48
SECTION 9.10. Waiver of Jury Trial......................... 48
SECTION 9.11. Severability................................. 48
SECTION 9.12. Counterparts................................. 48
SECTION 9.13. Headings..................................... 48
SECTION 9.14. Jurisdiction; Consent to Service of Process.. 48
SECTION 9.15. Confidentiality.............................. 49
EXHIBITS
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Exhibit A Administrative Questionnaire
Exhibit B-1 Form of Revolving Credit Borrowing Request
Exhibit B-2 Form of Subsidiary Borrower Designation
Exhibit B-3 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 New Lender Supplement
Exhibit G 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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364-DAY 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"); BANK OF NEW YORK, a New York banking corporation, as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent"); and.
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 (as herein
defined) to borrow loans in an aggregate amount not to exceed $500 million 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 any Loan bearing interest at a rate determined
by reference to the Alternate Base Rate in accordance with the provisions of
Article II.
"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 2.6(b).
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"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.
"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; 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.
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"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 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 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.
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"Commitment" shall mean, with respect to each Lender, the commitment
of such Lender to make Loans pursuant to Section 2.1, 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 2.10 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 aggregate principal amount of all Loans made by such Lender then
outstanding.
"Commitment Fees" shall mean all fees payable pursuant to Section
2.6(a).
"Commitment Increase Date" shall have the meaning assigned to such
term in Section 2.10(d).
"Commitment Increase Letter" shall have the meaning assigned to such
term in Section 2.10(d) and shall be substantially in the form of Exhibit G.
"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 Loans, and (b) the denominator of
which is the Total Commitment (or, on any day after termination of the
Commitments, the Total Commitment in effect immediately preceding such
termination).
"Communications Act" shall mean the Communications Act of 1934, as
amended.
"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).
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"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.
"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. It is understood
that conversions and continuations pursuant to Section 2.5 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.
"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 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 for a period equal to such Interest Period
commencing on the first day of such Interest Period appearing on Page 3750 of
the Telerate Screen as of 11:00 A.M., London time, two Business Days prior to
the beginning of such Interest Period. In the event that such rate does not
appear on Page 3750 of the 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 Dollar deposits approximately equal in principal amount to,
in the case of a Eurodollar Tranche, the portion of such Eurodollar Tranche of
the Lender serving as Administrative Agent, 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 Tranche" shall mean the collective reference to Eurodollar
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) 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.
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"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.
"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
and the Utilization Fees.
"Financial Covenants" shall have the meaning assigned to such term in
Section 1.2(b).
"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.
"Five-Year Credit Agreement" shall mean the 5-year credit agreement,
dated the date hereof, among Infinity, as borrower, each subsidiary borrower,
the lenders party thereto, The Chase Manhattan Bank, as administrative agent,
Fleet National Bank and Bank of America, N.A., each as co-syndication agent for
the Lenders, and Bank of New York, as documentation agent for the Lenders.
"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
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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 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, 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,
each day that would have been an Interest Payment Date for such Loan had
successive Interest Periods of three months' duration been applicable to such
Loan and, in addition, the date of any conversion of any Eurodollar 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, the last day of each
March, June, September and December and the applicable Maturity Date.
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"Interest Period" shall mean 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; 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 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.
"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.
"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 the revolving loans made by the Lenders to any
Borrower pursuant to Section 2.3. Each Loan shall be a Eurodollar Loan or an
ABR Loan.
"Margin Stock" shall have the meaning assigned to such term under
Regulation U.
"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.
10
"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.
"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
2.10(d).
"New Lender Supplement" shall mean the agreement made pursuant to
Section 2.10(d) substantially in the form of Exhibit F.
"Non-U.S. Person" shall have the meaning assigned to such term in
Section 2.17(f).
"Original Closing Date" shall mean August 29, 1996.
"Outstanding Extensions of Credit" shall mean, as to any Lender at any
time, an amount equal to the sum of the aggregate principal amount of all Loans
made by such Lender then outstanding.
"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.
11
"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.
"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.
"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 2.3 in the form of Exhibit B-1.
"Revolving Credit Maturity Date" shall mean May 2, 2001.
"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 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
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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.
"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).
"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-2, 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.
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"Subsidiary Borrower Request" shall mean a request, substantially in
the form of Exhibit B-3, which is received by the Administrative Agent in
connection with a Subsidiary Borrower Designation.
"Test Period" shall have the meaning assigned to such term in Section
1.2(c).
"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 Outstanding Extensions of Credit 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 Outstanding
Extensions of Credit) 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 or the Alternate Base Rate.
"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.
"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.
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(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
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.
15
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 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 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. Loans. (a) Each Loan shall be made to the relevant
Borrower by the Lenders ratably in accordance with their respective Commitments.
The Loans shall be made in minimum amounts equal to (i) in the case of
Eurodollar Loans, $50,000,000 or an integral multiple of $5,000,000 in excess
thereof, and (ii) in the case of ABR 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 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.
SECTION 2.3. Revolving Credit Borrowing Procedure. In order to
request a Loan, the relevant Borrower shall hand deliver or telecopy to the
Administrative Agent a Revolving Credit Borrowing Request in the form of Exhibit
B-1 (a) in the case of a Eurodollar 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 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 Loan then being requested is to be a Eurodollar Loan or
an ABR Loan, (ii) the date of such Loan (which shall be a Business Day) and the
amount thereof; and (iii) in the case of a Eurodollar Loan, the Interest Period
with respect thereto. The Administrative Agent shall promptly advise the
Lenders of any notice given pursuant to this Section 2.3 and of each Lender's
portion of the requested Loan.
SECTION 2.4. Repayment of Loans. Each Borrower shall repay all
outstanding Loans on the first anniversary of the Revolving Credit Maturity Date
(or such earlier date on which the Loans shall be due and payable in accordance
herewith). Each Loan shall bear interest from and including the date thereof on
the outstanding principal balance thereof as set forth in Section 2.07.
SECTION 2.5. Conversion and Continuation Options. (a) The relevant
Borrower may elect from time to time to convert Eurodollar Loans (or, subject to
Section 2.07(d), a portion thereof) to ABR Loans on the last day of an Interest
Period with respect thereto by giving the Administrative Agent prior irrevocable
notice of such election. The relevant Borrower may elect from time to time to
convert ABR Loans (subject to Section 2.07(d)) to Eurodollar Loans by giving the
Administrative Agent at least three Business Days' prior irrevocable notice of
such election. Any such notice of conversion to
16
Eurodollar 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
Loans and ABR Loans may be converted as provided herein; provided, that no Loan
may be converted into a Eurodollar 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 Loans (or, subject to Section 2.07(d), 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 Loans; provided,
that no Eurodollar 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
Loans shall be automatically converted to ABR Loans on the last day of such then
expiring Interest Period. Upon receipt of any notice from a Borrower pursuant
to this Section 2.5(b), the Administrative Agent shall promptly notify each
Lender thereof.
SECTION 2.6. 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 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.
(c) 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 Outstanding Extensions of Credit 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.
(d) 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. Once paid, none of the Fees shall be refundable
under any circumstances (other than corrections of errors in payment).
SECTION 2.7. Interest on Loans; Eurodollar Tranches; Etc. (a)
Subject to the provisions of Section 2.08, 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 in the case of each Eurodollar Loan, the
Eurodollar Rate for the Interest Period in effect for such Loan plus the
Applicable Eurodollar Margin. The Eurodollar Rate for each Interest Period
shall be determined by the
17
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 2.08, 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) Interest on each Loan shall be payable on each applicable
Interest Payment Date.
(d) Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations, repayments and prepayments of Eurodollar
Loans hereunder and all selections of Interest Periods hereunder in respect of
Eurodollar Loans shall be in such amounts and shall be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Eurodollar 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.
(e) If no election as to the Type of 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 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.
SECTION 2.8. 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 2.07
plus 2% and (b) if all or a portion of any interest payable on any Loan or any
Fee or other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate otherwise applicable to ABR Loans
pursuant to Section 2.07(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 2.9. 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 Loan
pursuant to Section 2.3 to be made after such determination shall be deemed to
be a request for an ABR Loan and (ii) any request by a Borrower for conversion
into or a continuation of a Eurodollar Loan pursuant to Section 2.5 to be made
after such determination shall have no force and effect (in the case of a
18
requested conversion) or shall be deemed to be a request for a conversion into
an ABR Loan (in the case of a requested continuation). Each determination by
the Administrative Agent or the Required Lenders hereunder shall be conclusive
absent manifest error.
SECTION 2.10. 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
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 2.10(a).
(b) Except as otherwise provided in Section 2.18, 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 Five-Year Credit
Agreement) under the Five-Year 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 2.10 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) of
this Section 2.10 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 G 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
19
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").
(f) Any increase in the Total Commitment pursuant to this Section 2.10
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 2.10 shall constitute a certification to the effect set forth in clauses
(i) and (ii) of this Section 2.10(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 2.11. Optional Prepayments of Loans. The relevant Borrower
may at any time and from time to time prepay the 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 Loans, and (ii) before 10:00
a.m., New York City time, one Business Day prior to prepayment, in the case of
ABR Loans. Such notice shall specify the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans, ABR Loans or a combination
thereof, and, if of a combination thereof, the amount allocable to each. If a
Eurodollar 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 2.13. 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 Loans)
accrued interest to such date on the amount prepaid. Partial prepayments of
Loans shall be in an aggregate principal amount of $10,000,000 or a whole
multiple of $1,000,000 in excess thereof.
SECTION 2.12. 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
20
thereof shall change the basis of taxation of payments to any Lender of the
principal of or interest on any Eurodollar Loan made by such Lender (other than
changes in respect of taxes 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 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 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 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 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.
(b) If any 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 any 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 capital
or on the capital of such Lender's holding company, if any, as a consequence of
this Agreement or the Loans made by such Lender pursuant hereto to a level below
that which such Lender or such Lender's holding company could have achieved but
for such applicability, adoption, change or compliance (taking into
consideration such Lender's policies and the policies of such Lender's holding
company with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time Infinity agrees to pay to such Lender as
provided in paragraph (c) below such additional amount or amounts as will
compensate such Lender or such Lender's holding company for any such reduction
suffered.
(c) A certificate of each Lender setting forth such amount or amounts
as shall be necessary to compensate such 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 the amount shown as due on
any such certificate within 30 days after its receipt of the same.
(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
compensation with respect to any other period. The protection of this Section
2.12 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 2.12 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
21
this Section 2.12, 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 2.12 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 2.12 shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
SECTION 2.13. 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 pursuant to Article II or (c) any payment,
prepayment or conversion of a Eurodollar 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 2.18 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 2.13 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 2.13 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 2.14. Pro Rata Treatment; Funding Matters; Evidence of Debt.
(a) Except as required under Section 2.18, each payment or prepayment of
principal of any Loan, each payment of interest on the Loans, each payment of
the Commitment Fees pursuant to Section 2.6(a)(i), and each reduction of the
Commitments, shall be allocated pro rata among the Lenders in accordance with
their respective Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Loans). 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
22
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 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, and conversion notices 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.
23
SECTION 2.15. Sharing of Setoffs. Except to the extent that this
Agreement provides for payments to be allocated to Loans, 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 as a
result of which the unpaid principal portion of such Loans shall be
proportionately less than the unpaid principal portion of such Loans 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 of such other Lender, so that
the aggregate unpaid principal amount of such Loans and participations in such
Loans held by each Lender shall be in the same proportion to the aggregate
unpaid principal amount of all such Loans then outstanding as the principal
amount of such Loans 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 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 2.15 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 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.
SECTION 2.16. 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.
(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 2.17. 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 2.16, 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
2.17) 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.
24
(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 (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 2.17) 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 2.17
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 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 2.17(f), a Non-U.S. Person shall not be required to
25
deliver any form pursuant to this Section 2.17(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 2.18. Termination or Assignment of Commitments Under Certain
Circumstances. (a) Any Lender (or Transferee) claiming any additional amounts
payable pursuant to Section 2.12 or Section 2.17 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 2.12, (y) any Borrower shall be required to make
additional payments to any Lender under Section 2.17, 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 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).
26
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) Each of (i) 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
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
27
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).
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.
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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.
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.
29
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) Amendments. The Administrative Agent shall have received the
amendment of 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 Five-Year
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 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. 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 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;
30
(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
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, unless the Required Lenders shall otherwise consent in writing:
SECTION 5.1. Financial Statements. Infinity shall deliver to each of
the Lenders:
(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
31
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;
(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
32
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.
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
33
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;
(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
34
(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 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
35
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;
(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
36
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 Five-Year 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
Five-Year 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 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 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 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
37
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 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
38
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 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 and (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 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 (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.
39
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 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, 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 all other amounts due
to the Lenders hereunder, and promptly to distribute to each 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 copies of all
notices, financial statements and other materials delivered by any Borrower
pursuant to this Agreement as received by the Administrative Agent.
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. 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 of any of its obligations hereunder or to any Lender on account of the
failure of or delay in performance or breach by any other Agent, any other
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 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 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
40
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 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.
Each 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 by the Administrative
Agent, including reasonable counsel fees and compensation of agents and
employees paid for services rendered on behalf of the 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 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 acknowledges that it has, independently and without
reliance upon the Agents or any other 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 also acknowledges that it
will, independently and without reliance upon any Agent or any other 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.
41
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.
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
42
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 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
43
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.
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 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
(d) 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
44
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 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 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 2.17(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 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 2.12, 2.13, 2.17 and 9.5, as well as to any Fees accrued
for its account hereunder and not yet paid)).
45
(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 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 2.12, 2.13 and 2.17 to
the same extent as if they were Lenders
46
(provided, that additional amounts payable to any Lender pursuant to Section
2.17 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 to approve
any amendment, modification or waiver of any provision of this Agreement (other
than amendments, 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, extending any scheduled principal payment date or date fixed for the
payment of interest on the Loans or of 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.
(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
47
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,
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 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 in connection with the enforcement or protection of the rights of the
Agents, the Lenders under this Agreement or in connection with the Loans made
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 or Lender.
(b) Infinity agrees to indemnify and hold harmless each Agent, each
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 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, 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
48
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.
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 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 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 (vii), except pursuant to Section 2.10, reduce the amount or
extend the scheduled date of maturity of any Loan or of any installment thereof,
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; (viii) 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 hereunder in such capacity without the prior written
consent of the Administrative Agent.
SECTION 9.9. Entire Agreement. This Agreement (together with the
Subsidiary Borrower Designations and the Subsidiary Borrower Requests)
constitutes the entire contract between the
49
parties relative to the subject matter hereof. Any previous agreement among 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.
50
(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 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.
51
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
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Title: Vice President
BANK OF AMERICA, N.A., as
Co-Syndication Agent and as a Lender
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
FLEET NATIONAL BANK, as
Co-Syndication Agent and as a Lender
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
52
THE BANK OF NEW YORK, as
Documentation Agent and as a Lender
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BARCLAYS BANK PLC, as a Lender
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
CITIBANK, N.A., as a Lender
By:/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
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/ ▇▇▇▇▇ ▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
53
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
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Credit Officer
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH, as a
Lender
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
By:/s/ Pascal Kabemba
----------------------
Name: Pascal Kabemba
Title: Associate Director
54
▇▇▇▇▇▇ 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/ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
THE SUMITOMO BANK, LIMITED, as a Lender
By:/s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
BANK ONE, N.A., as a Lender
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
CREDIT SUISSE FIRST BOSTON, as a Lender
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
55
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