<PAGE> 1
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-1004
----------------
FORM 10-Q
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM __________________ TO __________________
COMMISSION FILE NUMBER 1-14599
----------------
INFINITY BROADCASTING CORPORATION
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 13-4030071
- ------------------------ ------------------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
40 WEST 57TH STREET, NEW YORK, NY 10019
--------------------------------------------------
(Address of principal executive offices, zip code)
(212) 314-9200
----------------------------------------------------
(Registrant's telephone number, including area code)
Indicate by checkmark whether the registrant: (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
--- ---
At April 30, 2000, 387,941,174 shares of Class A common stock and 700,000,000
shares of Class B common stock were outstanding.
================================================================================
<PAGE> 2
INFINITY BROADCASTING CORPORATION
INDEX
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Statements of Earnings and Comprehensive Income 3
Condensed Consolidated Balance Sheet 4
Condensed Consolidated Statement of Cash Flows 5
Notes to the Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial 10
Condition and Results of Operations
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 16
Item 6. Exhibits and Reports on Form 8-K 16
SIGNATURE 20
</TABLE>
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<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
INFINITY BROADCASTING CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS AND COMPREHENSIVE INCOME
(unaudited, in thousands except per-share amounts)
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31, 2000 1999
=============================================================================================================
<S> <C> <C>
Total revenues $ 892,249 $538,627
Less agency commissions (103,665) (64,892)
- -------------------------------------------------------------------------------------------------------------
Net revenues 788,584 473,735
- -------------------------------------------------------------------------------------------------------------
Operating expenses excluding depreciation and amortization 460,927 303,579
Depreciation and amortization 160,821 72,610
- -------------------------------------------------------------------------------------------------------------
Total operating expenses 621,748 376,189
- -------------------------------------------------------------------------------------------------------------
Operating earnings 166,836 97,546
Interest expense, net (33,632) (2,202)
Other expense, net (1,365) (92)
- -------------------------------------------------------------------------------------------------------------
Earnings before income taxes and minority interest 131,839 95,252
Income taxes (74,093) (47,627)
Minority interest in loss of consolidated subsidiaries 50 35
- -------------------------------------------------------------------------------------------------------------
Net earnings $ 57,796 $ 47,660
=============================================================================================================
Basic earnings per common share $ 0.05 $ 0.06
Diluted earnings per common share $ 0.05 $ 0.06
=============================================================================================================
Weighed average common shares outstanding --
Basic 1,087,106 855,250
Diluted 1,093,571 855,251
=============================================================================================================
Comprehensive income:
Net earnings $ 57,796 $ 47,660
Foreign currency translation adjustment 10,441 --
- -------------------------------------------------------------------------------------------------------------
Comprehensive income $ 68,237 $ 47,660
=============================================================================================================
</TABLE>
See Notes to the Condensed Consolidated Financial Statements.
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<PAGE> 4
INFINITY BROADCASTING CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEET
(in thousands except per-share amounts)
<TABLE>
<CAPTION>
(UNAUDITED)
MARCH 31, DECEMBER 31,
2000 1999
=========================================================================================================================
<S> <C> <C>
ASSETS
Cash and cash equivalents $ 89,861 $ 71,636
Receivables (net of allowance for doubtful accounts of $54,724
and $48,868, respectively) 647,948 748,622
Prepaid and other current assets 124,116 108,846
Deferred income taxes 234,795 44,017
- -------------------------------------------------------------------------------------------------------------------------
Total current assets 1,096,720 973,121
Property and equipment, net 2,159,738 2,091,735
Intangible assets, net 15,566,106 15,927,693
Other assets 354,372 334,906
- -------------------------------------------------------------------------------------------------------------------------
Total assets $19,176,936 $19,327,455
=========================================================================================================================
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts payable and accrued expenses $ 290,743 $ 314,014
Accrued compensation 58,052 69,170
Accrued interest 33,873 17,112
Accrued income taxes -- 12,192
Short-term debt 51,000 38,000
Other current liabilities 1,277 943
- -------------------------------------------------------------------------------------------------------------------------
Total current liabilities 434,945 451,431
Long-term debt 1,829,198 1,906,348
Deferred income taxes 1,296,792 1,313,398
Other noncurrent liabilities 64,748 65,236
- -------------------------------------------------------------------------------------------------------------------------
Total liabilities 3,625,683 3,736,413
- -------------------------------------------------------------------------------------------------------------------------
Stockholders' equity:
Preferred stock, par value $0.01 (50,000 shares
authorized, no shares issued) -- --
Class A common stock, par value $0.01 (2,000,000 shares
authorized, 413,033 and 390,709 shares issued at March 31, 2000 and 4,130 3,907
December 31, 1999, respectively)
Class B common stock, par value $0.01 (2,000,000 shares authorized, 700,000
shares issued at March 31, 2000 and December 31, 7,000 7,000
1999, respectively)
Capital in excess of par value 15,716,169 15,657,734
Accumulated earnings 478,786 420,990
Accumulated other comprehensive loss (2,859) (13,300)
=========================================================================================================================
16,203,226 16,076,331
Less: Common stock held in treasury, at cost (22,631 shares and 17,636
shares held in treasury at March 31, 2000 and December 31, 1999,
respectively) (651,973) (485,289)
=========================================================================================================================
Total stockholders' equity 15,551,253 15,591,042
- -------------------------------------------------------------------------------------------------------------------------
Total liabilities and stockholders' equity $19,176,936 $19,327,455
=========================================================================================================================
</TABLE>
See Notes to the Condensed Consolidated Financial Statements.
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<PAGE> 5
INFINITY BROADCASTING CORPORATION
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(unaudited, in thousands)
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31, 2000 1999
==================================================================================================================
<S> <C> <C>
Cash flows from operating activities:
Net earnings $ 57,796 $ 47,660
Adjustments to reconcile net earnings to net cash Provided by operating
activities:
Depreciation and amortization 160,821 72,610
Deferred taxes 77,615 954
Other noncash items (3,216) (1,786)
Changes in assets and liabilities, net of acquisitions and dispositions:
Decrease in accounts receivable 100,674 59,024
Increase in other assets (34,329) (13,548)
(Decrease) increase in accounts payable and accrued expenses (26,835) 40,014
Increase (decrease) in accrued interest 16,761 (4,554)
(Decrease) increase in accrued income taxes payable (12,192) 46,673
Decrease in other liabilities (20,728) (6,065)
- ------------------------------------------------------------------------------------------------------------------
Net cash provided by operating activities 316,367 240,982
- ------------------------------------------------------------------------------------------------------------------
Cash flows from investing activities:
Proceeds from dispositions -- 58,750
Business acquisitions and investments (112,093) (36,914)
Capital expenditures (19,174) (10,299)
- ------------------------------------------------------------------------------------------------------------------
Net cash (used for) provided by investing activities (131,267) 11,537
- ------------------------------------------------------------------------------------------------------------------
Cash flows from financing activities:
Net increase in other short-term debt 13,000 --
Bank revolver borrowings 195,052 --
Bank revolver payments (175,000) --
Purchase of notes and convertible debentures (94,548) (123,545)
Treasury stock repurchase (163,334) --
Proceeds from exercise of stock options 57,955 --
- ------------------------------------------------------------------------------------------------------------------
Net cash used for financing activities (166,875) (123,545)
- ------------------------------------------------------------------------------------------------------------------
Increase in cash and cash equivalents 18,225 128,974
Cash and cash equivalents at beginning of year 71,636 497,701
- ------------------------------------------------------------------------------------------------------------------
Cash and cash equivalents at end of year $ 89,861 $ 626,675
==================================================================================================================
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
Cash paid during the year for:
Interest $ 22,456 $ 14,277
Income taxes 8,962 --
==================================================================================================================
</TABLE>
See Notes to the Condensed Consolidated Financial Statements.
-5-
<PAGE> 6
INFINITY BROADCASTING CORPORATION
NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. GENERAL
The condensed consolidated financial statements include the accounts of Infinity
Broadcasting Corporation and its subsidiary companies (together, Infinity or the
Company) after elimination of intercompany accounts and transactions. When
reading the financial information contained in this Quarterly Report, reference
should be made to the consolidated financial statements, schedules, and notes
contained in the Company's Annual Report on Form 10-K for the year ended
December 31, 1999. Certain previously reported amounts have been reclassified to
conform to the 2000 presentation. In the opinion of management, the condensed
consolidated financial statements include all material adjustments necessary to
present fairly the Corporation's financial position, results of operations and
cash flows. Such adjustments are of a normal recurring nature. The results for
this interim period are not necessarily indicative of results for the entire
year or any other interim period.
Infinity was incorporated in September 1998. The Company was formed to own and
operate CBS Corporation's (CBS) out-of-home media business. In December 1998,
CBS contributed to the Company, at book value, its radio and outdoor advertising
properties and related assets. The Company completed an initial public offering
of approximately 155 million shares of its Class A common stock in December 1998
(the IPO).
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities, the disclosure of
contingent assets and liabilities at the date of the financial statements, and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates. On an ongoing basis,
management reviews its estimates, including those related to intangible assets,
program rights, contracts, allowance for doubtful accounts, income taxes and
litigation, based on currently available information. Changes in facts and
circumstances may result in revised estimates.
2. ACQUISITIONS
On December 7, 1999, the Company completed the acquisition of Outdoor Systems,
Inc., now known as Infinity Outdoor, Inc. (Infinity Outdoor), for approximately
$8.7 billion, which included the issuance of approximately 233 million shares of
the Company's Class A common stock and the assumption of approximately $1.9
billion of debt, at fair value, and stock options to acquire approximately 28
million shares of the Company's Class A common stock. The acquisition has been
accounted for under the purchase method of accounting. The excess of the
purchase price over the fair value of the net assets acquired is being amortized
over a 30 year period. On December 6, 1999, CBS, Infinity and Infinity Outdoor
(the Parties) entered into a final judgment with the United States in connection
with Infinity's acquisition of Infinity Outdoor. Under the terms of the final
judgment, the Parties must divest certain outdoor advertising properties,
principally in the New York City area, in accordance with the terms and
conditions of the final judgment. The Company does not view these divestitures
as material to its business.
The following unaudited pro forma information combines the consolidated results
of operations of the Company with those of Infinity Outdoor as if the Infinity
Outdoor acquisition occurred on January 1, 1999. The pro forma results give
effect to certain purchase accounting adjustments, including additional
amortization expense from goodwill and other identifiable intangible assets,
increased interest expense from acquisition debt, the related income tax effects
and issuance of additional shares of Class A common stock.
-6-
<PAGE> 7
PRO FORMA RESULTS
(unaudited, in thousands except per-share amounts)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
-----------------------------------
2000 1999
===================================================================================================================
<S> <C> <C>
Net revenues $788,584 $ 639,466
Net earnings 57,796 23,083
Net earnings per common share - basic and diluted 0.05 0.02
===================================================================================================================
</TABLE>
This pro forma financial information is presented for comparative purposes only
and is not necessarily indicative of the operating results that actually would
have occurred had the Infinity Outdoor acquisition been consummated on January
1, 1999. In addition, these results are not intended to be a projection of
future results and do not reflect any synergies that might be achieved from
combined operations.
On March 3, 2000, the Company entered into an Asset Purchase Agreement to
acquire 18 radio stations from Clear Channel Communications, Inc. for
approximately $1.4 billion. These stations are located in San Diego, Phoenix,
Denver, Cleveland, Cincinnati, Orlando and Greensboro--Winston-Salem. The
transaction is subject to regulatory reviews and approvals, and is expected to
close by year-end 2000.
On March 21, 2000, the Company announced that it had entered into an agreement
to purchase Giraudy, one of France's largest outdoor advertising companies, for
approximately FF 2.7 billion or $375 million. This transaction is expected to
close by mid-year 2000.
On March 28, 2000, the Company announced that it had agreed to acquire Waterman
Broadcasting Corporation of Texas (Waterman Broadcasting) in exchange for
approximately 2.7 million shares of the Company's Class A common stock valued
at approximately $88 million on that date. Waterman Broadcasting owns radio
stations KTSA-AM and KTFM-FM in San Antonio. This transaction is subject to
regulatory reviews and approvals, and is expected to close by mid-year 2000.
3. ACCOUNTS PAYABLE AND ACCRUED EXPENSES
(in thousands)
<TABLE>
<CAPTION>
(UNAUDITED)
MARCH 31, DECEMBER 31,
2000 1999
=================================================================================================================
<S> <C> <C>
Accounts payable $ 70,773 $ 75,898
Accrued transit franchise payments 45,856 40,841
Other 174,114 197,275
-----------------------------------------------------------------------------------------------------------------
Total accounts payable and accrued expenses $290,743 $314,014
=================================================================================================================
</TABLE>
4. RELATED PARTY TRANSACTIONS
In December 1998, the Company completed its IPO. In connection with the IPO, the
Company entered into an intercompany agreement with CBS pursuant to which CBS
provides the Company with a number of services, including among others, certain
legal, financial, administrative and executive services. The costs of these
services are allocated according to established methodologies determined by CBS
on an annual basis. For the three months ended March 31, 2000 and 1999,
allocated expenses of $2.0 million and $1.7 million, respectively, were included
in the Company's Consolidated Statements of Earnings and Comprehensive Income.
As of March 31, 2000, CBS beneficially owned 64.0% of the equity and 89.9% of
the voting power of the Company, on a fully diluted basis.
5. INCOME TAXES
During the first quarter of 2000, the Company recognized a tax benefit of $265
million related to the exercise of approximately 22 million stock options
assumed as part of the Infinity Outdoor acquisition.
-7-
<PAGE> 8
6. EARNINGS PER COMMON SHARE
The Company adopted Statement of Financial Accounting Standards No. 128,
"Earnings per Share", which requires the disclosure of basic and diluted
earnings per share and related computations as follows:
COMPUTATION OF EARNINGS PER COMMON SHARE
(unaudited, in thousands except per-share amounts)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
------------------------------------
2000 1999
===================================================================================================================
<S> <C> <C>
Net earnings applicable to common stock $ 57,796 $ 47,660
- -------------------------------------------------------------------------------------------------------------------
Average shares outstanding - basic 1,087,106 855,250
Dilutive effect of stock option plans 6,465 1
- -------------------------------------------------------------------------------------------------------------------
Average shares outstanding - diluted 1,093,571 855,251
- -------------------------------------------------------------------------------------------------------------------
Basic and diluted earnings per common share $ 0.05 $ 0.06
===================================================================================================================
</TABLE>
Options to purchase approximately 6 million shares of the Company's Class A
common stock were excluded in the computation of diluted earnings per share
because their inclusion would be anti-dilutive.
7. SEGMENT INFORMATION
The Company's operations are principally focused on the out-of-home media
business and are aligned in two business segments, Radio and Outdoor. The
Company's Radio segment has been restated for the prior year to reflect the
costs of the Company's corporate headquarters separately. These costs are
primarily comprised of compensation and general operating expenses for the
corporate headquarters. Previously, these costs were reflected as a component of
the Radio segment.
SEGMENT RESULTS OF OPERATIONS
(unaudited, in millions)
<TABLE>
<CAPTION>
REVENUE OPERATING EARNINGS EBITDA
-------------------------- ------------------------- ---------------------
THREE MONTHS ENDED MARCH 31, 2000 1999 2000 1999 2000 1999
================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
Radio $457 $365 $147 $ 87 $212 $153
Outdoor 332 109 27 13 121 19
----------------------------------------------------------------------------------------------------------------
Total segments 789 474 174 100 333 172
Corporate -- -- (7) (2) (7) (2)
----------------------------------------------------------------------------------------------------------------
Total $789 $474 $167 $ 98 $326 $170
================================================================================================================
</TABLE>
Management believes that earnings before interest, taxes, minority interest,
depreciation and amortization (EBITDA) is an appropriate measure for evaluating
the operating performance of the Company's business. EBITDA eliminates the
effect of depreciation and amortization of tangible and intangible assets, most
of which were acquired in acquisitions accounted for under the purchase method
of accounting. The exclusion of amortization expense eliminates variations in
results among stations or other entities caused by the timing of acquisitions.
More recent acquisitions reflect higher amortization expense due to increasing
prices associated with out-of-home properties. However, EBITDA should be
considered in addition to, not as a substitute for, operating earnings, net
earnings, cash flows and other measures of financial performance reported in
accordance with generally accepted accounting principles. As EBITDA is not a
measure of performance calculated in accordance with generally accepted
accounting principles, this measure may not be comparable to similarly titled
measures employed by other companies. EBITDA differs from cash flows from
operating activities primarily because it does not consider changes in assets
and liabilities from period to period, and it does not include cash flows for
interest and taxes.
Net revenues derived from the Company's foreign operations were $84 million for
the three months ended March 31, 2000 as compared to $39 million for the
corresponding period of 1999.
-8-
<PAGE> 9
8. SUBSEQUENT EVENTS
On May 3, 2000, the Company entered into a new credit facility, which provides
for approximately $2.0 billion of additional borrowing capacity. The credit
facility provides for short-term money market loans and revolver borrowings.
Borrowing rates under the facility are determined at the time of each borrowing
and are based generally on a floating rate index, the London Interbank Offer
Rate (LIBOR), plus a margin based on Infinity's senior unsecured debt rating.
Borrowing availability under the credit facility may be subject to compliance
with certain covenants, including a maximum leverage ratio and a minimum
interest coverage ratio, based on Infinity's senior unsecured debt rating.
On May 4, 2000, CBS merged with Viacom Inc. (Viacom), and as a result of the
merger, Infinity became a majority-owned subsidiary of Viacom. As of that date,
Viacom beneficially owned 64.2% of the equity and 89.9% of the voting power of
the Company, on a fully diluted basis.
-9-
<PAGE> 10
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
GENERAL
Infinity Broadcasting Corporation (Infinity or the Company) is one of the
largest radio broadcasters in the United States where it owns and operates 162
radio stations. The Company is the largest outdoor advertising company in North
America, with operations in the United States, Canada and Mexico. Infinity also
owns outdoor advertising properties in Europe, with operations in the United
Kingdom, Ireland and the Netherlands. The Company also manages and holds an
equity position in Westwood One, Inc., the largest radio network in the United
States. The Company's operations are focused on the out-of-home media business
and are aligned in two business segments, Radio and Outdoor. The Company
characterizes its radio and outdoor advertising businesses as out-of-home
because a majority of radio listening, and virtually all viewing of outdoor
advertising, takes place in automobiles, in transit systems, on the street and
other locations outside the consumer's home, including listening to the radio at
work. The Company's strategy is to generally acquire out-of-home media
properties in the largest markets.
Infinity was incorporated in September 1998. The Company was formed to own and
operate CBS Corporation's (CBS) out-of-home media business. In December 1998,
CBS contributed to the Company, at book value, its radio and outdoor advertising
properties and related assets. Also in December 1998, the Company completed an
initial public offering of approximately 155 million shares of its Class A
common stock, generating net proceeds of $3.0 billion. Following the stock
offering, CBS owned 81.8% of the Company's equity and 95.8% of the voting power.
As of March 31, 2000, CBS beneficially owned 64.0% of the equity and 89.9% of
the voting power of the Company, on a fully diluted basis.
On December 7, 1999, the Company completed the acquisition of Outdoor Systems,
Inc., now known as Infinity Outdoor, Inc. (Infinity Outdoor), for approximately
$8.7 billion, which included the issuance of approximately 233 million shares of
the Company's Class A common stock, the assumption of approximately $1.9 billion
of debt, at fair value, and stock options to acquire approximately 28 million
shares of the Company's Class A common stock. On December 6, 1999, CBS, Infinity
and Infinity Outdoor (the Parties) entered into a final judgment with the United
States in connection with Infinity's acquisition of Infinity Outdoor. Under the
terms of the final judgment, the Parties must divest certain outdoor advertising
properties, principally in the New York City area, in accordance with the terms
and conditions of the final judgment. The Company does not view these
divestitures as material to its business.
On March 3, 2000, the Company entered into an Asset Purchase Agreement to
acquire 18 radio stations from Clear Channel Communications, Inc. for
approximately $1.4 billion. These stations are located in San Diego, Phoenix,
Denver, Cleveland, Cincinnati, Orlando and Greensboro--Winston-Salem. The
purchase allows Infinity to expand into five new Top 50 markets, and increases
the Company's presence in two markets it already serves. The transaction is
subject to regulatory reviews and approvals, and is expected to close by
year-end 2000.
On March 21, 2000, the Company announced that it had entered into an agreement
to purchase Giraudy, one of France's largest outdoor advertising companies, for
approximately FF 2.7 billion or $375 million. This acquisition expands the
Company's position in Europe. Upon the expected mid-year 2000 completion of the
Giraudy acquisition, TDI Europe, the Company's European outdoor advertising
business, will have rights to approximately 430,000 display faces.
On March 28, 2000, the Company announced that it had agreed to acquire Waterman
Broadcasting Corporation of Texas (Waterman Broadcasting) in exchange for
approximately 2.7 million shares of the Company's Class A common stock valued
at approximately $88 million on that date. Waterman Broadcasting owns radio
stations KTSA-AM and KTFM-FM in San Antonio. This transaction is subject to
regulatory reviews and approvals, and is expected to close by mid-year 2000.
On May 4, 2000, CBS merged with Viacom Inc. (Viacom), and as a result of the
merger, Infinity became a majority-owned subsidiary of Viacom. As of that date,
Viacom beneficially owned 64.2% of the equity and 89.9% of the voting power of
the Company, on a fully diluted basis.
-10-
<PAGE> 11
The condensed consolidated financial statements include the accounts of Infinity
and its subsidiary companies after elimination of intercompany accounts and
transactions. When reading the financial information contained in this Quarterly
Report, reference should be made to the consolidated financial statements,
schedules, and notes contained in the Company's Annual Report on Form 10-K for
the year ended December 31, 1999. Certain previously reported amounts have been
reclassified to conform to the 2000 presentation. In the opinion of management,
the condensed consolidated financial statements include all material adjustments
necessary to present fairly the Corporation's financial position, results of
operations and cash flows. Such adjustments are of a normal recurring nature.
The results for this interim period are not necessarily indicative of results
for the entire year or any other interim period.
RESULTS OF OPERATIONS
Where appropriate, the discussion below provides a comparison of actual results
with pro forma results. For the 2000 and 1999 comparisons, pro forma results
were determined as if the acquisition of Infinity Outdoor had occurred on
January 1, 1999.
USE OF EBITDA
Management believes that earnings before interest, taxes, minority interest,
depreciation and amortization (EBITDA) is an appropriate measure for evaluating
the operating performance of the Company's business. EBITDA eliminates the
effect of depreciation and amortization of tangible and intangible assets, most
of which were acquired in acquisitions accounted for under the purchase method
of accounting. The exclusion of amortization expense eliminates variations in
results among stations or other entities caused by the timing of acquisitions.
More recent acquisitions reflect higher amortization expense due to increasing
prices associated with out-of-home properties. However, EBITDA should be
considered in addition to, not as a substitute for, operating earnings, net
earnings, cash flows and other measures of financial performance reported in
accordance with generally accepted accounting principles. As EBITDA is not a
measure of performance calculated in accordance with generally accepted
accounting principles, this measure may not be comparable to similarly titled
measures employed by other companies. EBITDA differs from cash flows from
operating activities primarily because it does not consider changes in assets
and liabilities from period to period, and it does not include cash flows for
interest and taxes.
THREE MONTHS ENDED MARCH 31, 2000 COMPARED TO THE THREE MONTHS ENDED MARCH 31,
1999
The Company's net revenues for the three months ended March 31, 2000 were $789
million compared to $474 million for the three months ended March 31, 1999, an
increase of approximately 66%. Radio net revenues for the three months ended
March 31, 2000 were $457 million compared to $365 million for the three months
ended March 31, 1999, an increase of approximately 25% as a result of strong
performance at the Company's radio stations. Outdoor net revenues for the
three months ended March 31, 2000 were $332 million compared to $109 million
for the three months ended March 31, 1999, an increase of approximately 204%.
Driving this increase was the strong performance of the Company's outdoor
properties, as well as the December 1999 acquisition of Infinity Outdoor. On a
pro forma basis, assuming the Infinity Outdoor acquisition was completed on
January 1, 1999, the Outdoor segment's net revenues for the first quarter of
2000 increased by approximately 21%. During the first quarter of 2000, the
Company's consolidated net revenues on a pro forma basis increased
approximately 23%.
The Company's operating expenses excluding depreciation and amortization expense
for the three months ended March 31, 2000 were $461 million compared to $304
million for the three months ended March 31, 1999, an increase of approximately
52%. Radio operating expenses excluding depreciation and amortization for the
three months ended March 31, 2000 were $244 million compared to $212 million for
the three months ended March 31, 1999, an increase of approximately 15%. Outdoor
operating expenses excluding depreciation and amortization for the three months
ended March 31, 2000 were $210 million compared to $90 million for the three
months ended March 31, 1999, an increase of approximately 133%. These increases
were primarily attributable to expenses associated with higher revenues, as well
as the December 1999 acquisition of Infinity Outdoor. On a pro forma basis, the
Company's operating expenses excluding depreciation and amortization for the
three months ended March 31, 2000 compared to the three months ended March 31,
1999 increased approximately 18%, reflecting higher outdoor lease expenses as
well as expenses associated with higher revenues. The Company's corporate
expenses for the three months ended March 31, 2000 were $7 million compared to
$2 million for the three months ended March 31, 1999, an increase of $5 million,
principally due to higher compensation expense.
-11-
<PAGE> 12
The Company's depreciation and amortization expense for the three months ended
March 31, 2000 was $161 million compared to $72 million for the three months
ended March 31, 1999, an increase of approximately 121%. Radio depreciation and
amortization expense remained flat at approximately $66 million for the three
months ended March 31, 2000 and 1999. Outdoor depreciation and amortization
expense for the three months ended March 31, 2000 was $95 million compared to $6
million for the three months ended March 31, 1999, an increase of approximately
$89 million, resulting primarily from the December 1999 acquisition of Infinity
Outdoor.
The Company's operating earnings for the three months ended March 31, 2000 were
$167 million compared to $98 million for the three months ended March 31, 1999,
an increase of approximately 71%. Radio operating earnings for the three months
ended March 31, 2000 were $147 million compared to $87 million for the three
months ended March 31, 1999, an increase of approximately 68%. Outdoor operating
earnings for the three months ended March 31, 2000 were $27 million compared to
$13 million for the three months ended March 31, 1999, an increase of
approximately 120%. These increases were primarily attributable to higher
revenues at the existing operations of both Radio and Outdoor, as well as the
December 1999 acquisition of Infinity Outdoor. The Company's consolidated
operating earnings on a pro forma basis increased approximately 84% during
the first quarter of 2000 as compared to the first quarter of 1999.
The Company's EBITDA for the three months ended March 31, 2000 was $326 million
compared to $170 million for the three months ended March 31, 1999, an increase
of approximately 92%. The Radio segment's EBITDA for the three months ended
March 31, 2000 was $212 million compared to $153 million for the three months
ended March 31, 1999, an increase of approximately 38%. The Outdoor segment's
EBITDA for the three months ended March 31, 2000 was $121 million compared to
$19 million for the three months ended March 31, 1999, an increase of
approximately 534%. These increases were primarily attributable to the higher
revenues generated by the Company's operating segments and the December 1999
acquisition of Infinity Outdoor. On a pro forma basis, assuming the Infinity
Outdoor acquisition was completed on January 1, 1999, the Outdoor segment's
EBITDA for the first quarter of 2000 increased by approximately 24%. The
Company's consolidated EBITDA on a pro forma basis increased approximately 31%
during the first quarter of 2000 as compared to the first quarter of 1999.
Net interest expense for the first quarter of 2000 was $34 million compared to
$2 million for the first quarter of 1999. The increase in net interest expense
resulted primarily from the assumption of debt in connection with the December
1999 acquisition of Infinity Outdoor.
Income taxes for the three months ended March 31, 2000 were $74 million compared
to $48 million for the three months ended March 31, 1999. The effective tax rate
was 56% for the three months ended March 31, 2000 compared to 50% for the three
months ended March 31, 1999. The Company's effective tax rate exceeds the
federal statutory rate primarily because of the non-deductible goodwill
amortization resulting from acquisitions, including the acquisition of Infinity
Outdoor. The increase in tax expense was due to the Company's higher operating
earnings.
Net earnings for the three months ended March 31, 2000 totaled $58 million
compared to $48 million for the three months ended March 31, 1999, an increase
of approximately 21%.
SEASONALITY
Seasonal revenue fluctuations are common in the out-of-home media industry and
are primarily the result of fluctuations in advertising expenditures by
retailers. The Company's revenues are typically lowest in the first quarter and
highest in the third and fourth quarters.
LIQUIDITY AND CAPITAL RESOURCES
In general, the Company's operations generate cash substantially in excess of
that required for recurring operations and capital expenditures. At March 31,
2000, the Company had approximately $1.8 billion of long-term debt outstanding,
substantially all of which was assumed or financed in connection with the
December 1999 acquisition of Infinity Outdoor and the June 1998 acquisition of
American Radio Systems Corporation. The Company's equity at March 31, 2000
totaled approximately $15.6 billion. At March 31, 2000, the Company's cash and
cash equivalents totaled $90 million. Management expects that the Company will
have sufficient liquidity to meet its future business needs. Sources of
liquidity generally available to the Company include cash from operations, cash
and cash equivalents, borrowings, and issuance of equity securities.
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<PAGE> 13
On March 3, 2000, the Company entered into an agreement to acquire 18 radio
stations from Clear Channel Communications, Inc. for approximately $1.4 billion.
On March 21, 2000, the Company announced an agreement to purchase Giraudy, one
of France's largest outdoor advertising companies, for approximately FF 2.7
billion, or $375 million. In order to finance these acquisitions, the Company
executed a credit facility, increasing its borrowing capacity by approximately
$2.0 billion. In addition, on March 28, 2000, the Company announced an agreement
to purchase two stations in San Antonio, Texas in exchange for approximately 2.7
million shares of the Company's Class A common stock.
Operating Activities
The Company's operating activities provided $317 million of cash during the
first three months of 2000 compared to $241 million during the first three
months of 1999. The increase relates primarily to the improved operating results
during the first three months of 2000 and cash provided from the operations of
Infinity Outdoor.
During the first quarter of 2000, the Company recognized a tax benefit of $265
million related to the exercise of approximately 22 million stock options
assumed as part of the Infinity Outdoor acquisition. As a result, the Company
expects a reduction in taxes paid during 2000.
Investing Activities
The Company's investing activities used cash of $131 million during the first
three months of 2000 compared to providing cash of $12 million during the first
three months of 1999. Cash used during the first three months of 2000 related
primarily to the impact of acquisitions of outdoor properties and capital
expenditures.
The Company's capital expenditures totaled $19 million for the first three
months of 2000 compared to $10 million for the first three months of 1999. The
Company's business does not require substantial investment of capital. The
increase in capital expenditures during the first three months of 2000 was due
to the December 1999 acquisition of Infinity Outdoor.
Financing Activities
Cash used for financing activities totaled $167 million during the first three
months of 2000 compared to $124 million during the first three months of 1999.
During the first quarter of 2000, pursuant to $1 billion of stock buyback
authorizations, the Company acquired approximately 5 million shares of its Class
A common stock, at a cost of $167 million. Since the inception of the stock
buyback program in June 1999 through May 12, 2000, the Company has acquired
approximately 26 million shares of its Class A common stock at an average
price of $29.13 per share for a total of $770 million. The stock buybacks were
funded principally from the Company's internal cash resources.
On May 3, 2000, the Company executed a new credit facility, which provides for
approximately $2.0 billion of additional borrowing capacity. The Company's
revolving credit agreements provide for approximately $3.5 billion of total
available borrowings. CBS guarantees $1.5 billion of Infinity's borrowing under
the original revolver. Borrowing availability under the credit agreements is
subject to compliance with certain covenants, including a maximum leverage ratio
and a minimum interest coverage ratio, as defined in the credit agreements. At
March 31, 2000, the Company had borrowings under the original credit facility of
approximately $1.0 billion, of which $51 million were short-term. These
borrowings resulted principally from the refinancing of debt assumed in the
Infinity Outdoor acquisition.
During the first quarter of 2000, the Company repurchased at market rates,
certain outstanding debt at a cost of $95 million.
Cash used for financing activities during the first three months of 1999 related
to the Company's repayment of outstanding debt.
The Company does not anticipate paying any dividends on its common stock in the
near term.
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<PAGE> 14
REGULATORY MATTERS
The Communications Act prohibits the assignment of a broadcast license or the
transfer of control of a broadcast licensee without the prior approval of the
FCC. In determining whether to grant such approval, the FCC considers a number
of factors pertaining to the proposed assignee or transferee, including
compliance with the various rules limiting common ownership of media properties
in a given market, the "character" of the proposed assignee or transferee and
those persons holding "attributable" interests therein, and compliance with the
Communications Act's limitations on alien ownership and other FCC policies,
including recently adopted equal employment opportunity requirements.
The Telecommunications Act of 1996 (Telecom Act) eliminated national limits on
the ownership of AM and FM stations. Additionally, it established new local
ownership rules that use a sliding scale of permissible ownership, depending on
the number of radio stations in a certain FCC-defined market. The FCC also has
an unpublished policy that involves special review and notice of proposed
transactions if such transactions would enable a single owner or two owners to
attain a high degree of revenue concentration in a market.
CBS has previously received numerous permanent and temporary conditional waivers
to permit ownership of a television station and numerous radio stations in the
same market. The temporary waivers were subject to the outcome of pending
rulemaking proceedings focusing upon the possible relaxation of the FCC rule
restricting common ownership in the same market of radio and television stations
(formerly known as the "one-to-a-market" rule).
In August 1999, the FCC adopted a radio/television cross-ownership rule, which
allows a single party to own in a market: (a) up to two television stations (if
permitted by the FCC's newly promulgated television duopoly rule) and up to six
radio stations; or (b) one television station and seven radio stations (assuming
the television duopoly rule would allow common ownership of two television
stations in a market), in both instances if sufficient market "voices" (which
include independently owned television and radio stations as well as daily
newspapers and cable television) exist.
CBS demonstrated compliance with the new rule in all markets other than Los
Angeles, Chicago and Dallas-Fort Worth, in each of which the Company has
attributable interests in eight radio stations and CBS has interests in one
television station, and in the Baltimore market, where CBS has attributable
interests in one television station and the Company has attributable interests
in, based on the FCC's interpretation of the new rule, eight radio stations.
As to those four markets, the new rule provides that the FCC would continue
the temporary waivers until 2004, at which time the FCC will review its
radio/television cross-ownership rule, and CBS and the Company would have an
opportunity to demonstrate that the continued ownership of radio stations in
these markets in excess of the limits set by the rules would serve the public
interest.
However, in connection with the merger of Viacom and CBS, FCC approval has been
granted, allowing the transfer of control to Viacom of the television licenses
held by CBS and the radio licenses currently held by the Company. The combined
company will be required to divest some of its broadcasting assets in connection
with such FCC approval. In particular, the combined company will not be
permitted to continue the temporary conditional waivers of the radio/television
cross-ownership rule until 2004, and the addition of certain Viacom television
stations will obligate the combined company to divest additional radio stations.
In total, based on the FCC's interpretation of the radio/television
cross-ownership rule, the combined company will be required to divest seven
radio stations in Los Angeles (1), Chicago (1), Baltimore (2), Dallas (2) and
Sacramento (1) in order to comply with the radio/television cross-ownership
rule.
In order to consummate the Viacom/CBS merger on an orderly and timely basis,
Viacom and CBS have requested a period of six months from consummation of the
merger within which to file applications for divestiture which would achieve
compliance with the radio/television cross-ownership rule.
The FCC generally applies its ownership limits to "attributable" interests held
by an individual, corporation, partnership or other association. In the case of
corporations holding, or through subsidiaries controlling, broadcast licenses,
the interests of officers, directors and those who, directly or indirectly, have
the right to vote 5% or more of the corporation's voting stock (or 20% or more
of such stock in the case of insurance companies, investment companies and bank
trust departments that are passive investors) are generally attributable. If a
single individual or entity controls more than 50% of a corporation's
outstanding voting stock, that individual or entity is viewed as a
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<PAGE> 15
single majority stockholder; thus, the FCC views the combined company as a
single majority stockholder of the Company. In the case of a single majority
stockholder, the interests of other stockholders are not attributable unless the
stockholders are also officers or directors of the corporation or the new
"equity/debt plus" rule applies, under which an otherwise nonattributable debt
or equity interest will be deemed attributable where: (a) the interest holder is
also a program supplier to the licensee in question or is a same market
broadcaster or other media outlet subject to the broadcast cross-ownership
rules, including newspaper and cable operators; and (b) the equity and/or debt
holding exceeds 33 percent of the media outlet's total asset value.
The Communications Act prohibits the issuance of broadcast licenses to, or the
holding of broadcast licenses by, any corporation of which more than 20% of the
capital stock is owned of record or voted by non-U.S. citizens or their
representatives or by a foreign government or a representative thereof, or by
any corporation organized under the laws of a foreign country. The
Communications Act also authorizes the FCC, if the FCC determines that it would
be in the public interest, to prohibit the issuance of a broadcast license to,
or the holding of a broadcast license by, any corporation directly or indirectly
controlled by any other corporation (such as Viacom in the case of the Company)
of which more than 25% of the capital stock is owned of record or voted by
aliens. As a result of these provisions, the licenses granted to the Company by
the FCC could be revoked if more than 20% of the Company's stock were directly
or indirectly owned or voted by aliens or if more than 25% of Viacom's stock
were directly or indirectly held or voted by aliens. The Company's restated
certificate restricts the ownership, voting and transfer of the Company's
capital stock in accordance with the Communications Act and the rules of the
FCC, and prohibits the issuance of more than 20% of the Company's outstanding
capital stock (or more than 20% of the voting rights it represents) to or for
the account of aliens. The restated certificate authorizes the Company's Board
of Directors to enforce these prohibitions. In addition, the restated
certificate provides that shares of capital stock of the Company determined by
the Company's Board of Directors to be owned beneficially by an alien or an
entity directly or indirectly owned by aliens in whole or in part shall be
subject to redemption by the Company by action of the Board of Directors to the
extent necessary, in the judgment of the Board of Directors, to comply with
these alien ownership restrictions.
INFORMATION RELATING TO FORWARD-LOOKING STATEMENTS
This Quarterly Report on Form 10-Q, including "Management's Discussion and
Analysis of Financial Condition and Results of Operations," contains both
historical and forward-looking statements. All statements other than statements
of historical fact are, or may be deemed to be, forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended. These
forward-looking statements are not based on historical facts but rather reflect
the Company's current expectations concerning future results and events. The
words "believes," "expects," "intends," "plans," "anticipates," "likely,"
"will," and similar expressions identify such forward-looking statements. These
forward-looking statements are subject to risks, uncertainties, and other
factors, some of which are beyond the Company's control, that could cause actual
results to differ materially from those forecast or anticipated in such
forward-looking statements.
Such risks, uncertainties, and factors include, but are not limited to, the
impact of changes in national, regional and local economics; successful
integration of any acquired properties; the Company's ability to develop and/or
acquire radio on-air talent and programming and to attract and retain
advertisers; the impact of significant competition from other radio stations and
programming alternatives such as broadcast television, newspapers, magazines,
cable television, the Internet, direct mail, and the impact of new technologies;
changes in FCC regulations; increased governmental regulation of the location,
size or content of outdoor advertising; and such other competitive and business
risks as from time to time may be detailed in the Company's Securities and
Exchange Commission reports.
Readers are cautioned not to place undue reliance on these forward-looking
statements which reflect management's view only as of the date of this Report on
Form 10-Q. The forward-looking statements included in this document are made
only as of the date of this document and the Company does not have any
obligation under Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended, to publicly
update any forward-looking statements to reflect subsequent events or
circumstances.
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<PAGE> 16
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company is a party to various legal proceedings arising in the ordinary
course of business. In the opinion of management of the Company, however, there
are no legal proceedings pending against the Company likely to have a material
adverse effect on the Company.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
A)EXHIBITS
2. PLAN OF ACQUISITION.
2.1 Asset Purchase Agreement, dated March 3, 2000, among Clear
Channel Communications, Inc., AMFM Inc., CCU Merger Sub, Inc.
and CBS Radio Inc, is incorporated herein by reference to
Exhibit 10.30 to Form 10-K for the year ended December 31,
1999.
2.2 Agreement and Plan of Merger, dated May 27, 1999, among the
Company, Burma Acquisition Corp. and Outdoor Systems, Inc., is
incorporated herein by reference to Exhibit 99.1 to the report
on Form 8-K of Outdoor Systems, Inc., filed with the
Securities and Exchange Commission on June 3, 1999.
2.3 Amendment No. 1, dated June 16, 1999, to the Agreement and
Plan of Merger, dated May 27, 1999, among the Company, Burma
Acquisitions Corp. and Outdoor Systems, Inc., is incorporated
herein by reference to Exhibit 99.2 to the Company's report on
Form 8-K, filed with the Securities and Exchange Commission on
June 25, 1999.
3. CERTIFICATE OF INCORPORATION AND BY-LAWS.
3.1 Restated Certificate of Incorporation of the Company as of
December 14, 1998 is incorporated by reference to Exhibit 3.1
to the report on Form 10-Q for the quarter ended June 30,
1999.
3.2 Restated By-Laws of the Company as of December 14, 1998 are
incorporated by reference to Exhibit 3.2 to the report on Form
10-Q for the quarter ended June 30, 1999.
4. RIGHTS OF SECURITY HOLDERS.
4.1 There are no instruments with respect to long-term debt of
the Company that involve securities authorized thereunder
exceeding 10 percent of the total assets of the Company and
its subsidiaries on a consolidated basis. The Company agrees
to provide to the Securities and Exchange Commission, upon
request, a copy of instruments defining the rights of holders
of long-term debt of the Company and its subsidiaries.
10. MATERIAL CONTRACTS.
10.1 Intercompany Agreement between CBS Corporation and the Company
is incorporated by reference to Exhibit 10(x) to the report on
Form 10-K of CBS Corporation for the year ended December 31,
1998.
10.2 Tax Sharing Agreement between CBS Corporation and the Company
is incorporated by reference to Exhibit 10(y) to the report on
Form 10-K of CBS Corporation for the year ended December 31,
1998.
10.3 Amended and Restated Credit Agreement, dated as of
December 10, 1999, among the Company, the Subsidiary Borrowers
parties thereto, CBS Corporation, as Guarantor, the Lenders
named therein, The Chase Manhattan Bank, as Documentation
Agent, Morgan Guaranty Trust Company of New York, as
Administrative Agent, and Bank of America, N.A. and The
Toronto-Dominion Bank, as Syndication Agents, is incorporated
herein by reference to Exhibit 10.8 to the report on Form 10-K
for the year ended December 31, 1999.
10.4 Amendment No. 1, dated as of April 17, 2000, to the Amended
and Restated Credit Agreement, dated as of December 10, 1999,
among the Company, the Subsidiary Borrowers (as defined in
the Agreement), CBS Corporation, as Guarantor, the Lenders
(as defined in the Agreement), Bank of America, N.A. and The
Toronto-Dominion Bank, as Syndication Agents for the Lenders,
The Chase Manhattan Bank, as Documentation Agent for the
Lenders, and Morgan Guaranty Trust Company of New York, as
Administrative Agent for the Lenders.
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<PAGE> 17
10.5 Five-year Credit Agreement, dated as of May 3, 2000, among the
Company, the Subsidiary Borrowers parties thereto, the Lenders
named therein, 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.
10.6 364-Day Credit Agreement, dated as of May 3, 2000, among the
Company, the Subsidiary Borrowers parties thereto, the Lenders
named therein, 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.
10.7 Management Agreement, dated March 30, 1999, between the
Company and Westwood One, Inc., is incorporated herein by
reference to Exhibit 10.17 to the report on Form 8-K of
Westwood One, Inc., filed with the Securities and Exchange
Commission on June 4, 1999.
10.8 Amended and Restated Representation Agreement, dated March
30, 1999, between the Company and Westwood One, Inc., is
incorporated herein by reference to Exhibit 10.18 to the
report on Form 8-K of Westwood One, Inc., filed with the
Securities and Exchange Commission on June 4, 1999.
10.9* Services Agreement, dated as of May 1, 1993, by and between
Outdoor Systems, Inc., Williams Manufacturing, Inc., and J&L
Industries, and Amendment No. 1, dated April 15, 1996,
thereto.
10.10* Letter Agreement, dated as of September 6, 1999, between
Viacom Inc. and Mel Karmazin, is incorporated by reference
to Exhibit 99.4 to the report on Form 8-K of CBS Corporation,
filed with the Securities and Exchange Commission on
September 8, 1999.
10.11* First Amendment to Employment Agreement, dated December 31,
1999, between Viacom Inc. and Mel Karmazin, is incorporated
by reference to Exhibit 10(ss) to the report on Form 10-K of
CBS Corporation for the year ended December 31, 1999.
10.12* The CBS Corporation 1991 Long-Term Incentive Plan, as amended
to July 28, 1999, is incorporated by reference to Exhibit
10.15 to the report on Form 10-Q for the quarter ended
September 30, 1999.
10.13* The CBS Corporation 1993 Long-Term Incentive Plan, as amended
to July 28, 1999, is incorporated by reference to Exhibit
10.16 to the report on Form 10-Q for the quarter ended
September 30, 1999.
10.14* 1998 Long-Term Incentive Plan of the Company, is incorporated
herein by reference to Exhibit 10.16 to the report on Form
10-K for the year ended December 31, 1999.
10.15* Executive Annual Incentive Plan of the Company, is
incorporated herein by reference to Exhibit 10.17 to the
report on Form 10-K for the year ended December 31, 1999.
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<PAGE> 18
10.16* The Westinghouse Executive Pension Plan, as amended to July
28, 1999, is incorporated by reference to Exhibit 10.20 to the
report on Form 10-Q for the quarter ended September 30, 1999.
10.17* The CBS Corporation 1998 Executive Annual Incentive Plan is
incorporated herein by reference to Exhibit A to the Proxy
Statement of CBS Corporation filed March 25, 1998.
10.18 Form of Trademark License Agreement between CBS Worldwide Inc.
and the Company is incorporated by reference to Exhibit 10.24
to the Company's Registration Statement No. 333-63727 on Form
S-1, Amendment No. 4, filed with the Securities and Exchange
Commission on December 4, 1998.
10.19 Form of Trademark License Agreement between CBS Broadcasting
Inc. and the Company is incorporated by reference to Exhibit
10.25 to the Company's Registration Statement No. 333-63727 on
Form S-1, Amendment No. 4, filed with the Securities and
Exchange Commission on December 4, 1998.
10.20 Form of Trademark License Agreement between CBS Corporation
and the Company is incorporated by reference to Exhibit 10.26
to the Company's Registration Statement No. 333-63727 on Form
S-1, Amendment No. 4, filed with the Securities and Exchange
Commission on December 4, 1998.
10.21* The Infinity Broadcasting Corporation Stock Plan for Directors
is incorporated by reference to Exhibit 10.25 to Form 10-K for
the year ended December 31, 1998.
10.22 Stockholders Agreement, dated May 27, 1999, among the Company,
William S. Levine, Arturo R. Moreno, Carole D. Moreno, Levine
Investments Limited Partnership and BRN Properties Limited
Partnership, is incorporated herein by reference to Exhibit
99.2 to the report on Form 8-K of Outdoor Systems, Inc., filed
with the Securities and Exchange Commission on June 3, 1999.
10.23 Amendment No. 1, dated July 15, 1999, to the Stockholders
Agreement, dated May 27, 1999, among the Company and the
stockholders named in the agreement, is incorporated herein by
reference to Exhibit 2.4 to the Company's Registration
Statement No. 333-88363 on Form S-4, filed with the Securities
and Exchange Commission on October 4, 1999.
27. FINANCIAL DATA SCHEDULE.
* Identifies management contract or compensatory plan or arrangement.
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<PAGE> 19
B) REPORTS ON FORM 8-K
A Current Report on Form 8-K (Items 5 and 7), filed with the Securities and
Exchange Commission on January 14, 2000, filing a press release announcing that
the Company's Board of Directors authorized the purchase of an additional $500
million of its Class A common stock.
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<PAGE> 20
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized, on the 15th day of May, 2000.
INFINITY BROADCASTING CORPORATION
By: /s/ Farid Suleman
-----------------------------------------
Farid Suleman
Executive Vice President, Chief
Financial Officer and Treasurer
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<PAGE> 1
Exhibit 10.4
AMENDMENT NO. 1 (this "Amendment") dated as
of April 17 2000, to the AMENDED AND RESTATED CREDIT
AGREEMENT (the "Agreement") entered into as of
December 10, 1999, among INFINITY BROADCASTING
CORPORATION, a Delaware corporation ("Infinity");
each Subsidiary Borrower (as defined in the
Agreement); CBS CORPORATION, a Pennsylvania
corporation ("CBS"), as a guarantor; the Lenders (as
defined in the Agreement); BANK OF AMERICA, N.A.
("Bank of America") and THE TORONTO-DOMINION BANK
("Toronto Dominion"), as syndication agents for the
Lenders (in such capacity, the "Syndication Agents");
THE CHASE MANHATTAN BANK, a New York banking
corporation ("Chase"), as documentation agent for the
Lenders; and MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, a New York banking corporation ("Morgan"), as
administrative agent for the Lenders.
The Agreement is hereby amended as follows:
SECTION 1. Amendment. (a) The definition of the term "CBS
Consolidated EBITDA" is hereby deleted and replaced in its entirety by the
following new definition:
"CBS Consolidated EBITDA" shall mean, with respect to CBS and
its Consolidated Subsidiaries for any period, operating profit
(loss) (excluding that related to Discontinued Operations),
plus other income (loss), plus interest income, plus
depreciation and amortization (excluding amortization related
to programming rights, prepublication costs and
videocassettes), 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), (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 CBS's Form 10-Q for the
fiscal quarter ended September 30, 1998 filed with the SEC,
minus cash payments made
<PAGE> 2
2
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, 1998) and (c)
nonrecurring expenses incurred in connection with the merger
of CBS and Viacom Inc. ("Viacom") pursuant to the Agreement
and Plan of Merger dated as of September 6, 1999, as amended
and restated as of October 8, 1999 and as of November 23,
1999, by and among CBS, Viacom and Viacom/CBS LLC.
(b) The definition of the term "CBS Consolidated Total Funded
Indebtedness" in Section 1.1 of the Agreement is hereby deleted and replaced in
its entirety by the following new definition:
"CBS Consolidated Total Funded Indebtedness" shall mean with
respect to CBS and its Consolidated Subsidiaries at any date,
without duplication, (i) all obligations of such Person for
borrowed money (including, without limitation, in the case of
the Borrower, the obligations of the Borrower for borrowed
money under this Agreement), (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the
deferred purchase price of Property or services, except as
provided below, (iv) all obligations of such Person as lessee
under Capital Lease Obligations, (v) all Indebtedness of
others secured by a Lien on any Property of such Person,
whether or not such Indebtedness is assumed by such Person,
(vi) all Indebtedness of others directly or indirectly
guaranteed or otherwise assumed by such Person, including any
obligations of others endorsed (otherwise than for collection
or deposit in the ordinary course of business) or discounted
or sold with recourse by such Person, or in respect of which
such Person is otherwise directly or indirectly liable,
including, without limitation, any Indebtedness in effect
guaranteed by such Person through any agreement (contingent or
otherwise) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for
the payment or discharge of such obligation, or to maintain
the solvency or any balance sheet or other financial condition
of the obligor of such obligation, provided that Indebtedness
of the Borrower and its Subsidiaries shall not include
guarantees of Indebtedness that
<PAGE> 3
3
are identified on Schedule 1.1 hereto, (vii) all obligations
of such Person as issuer, customer or account party under
letters of credit or bankers' acceptances that are either
drawn or that back financial obligations that would otherwise
be Indebtedness; provided, however, that in each of the
foregoing clauses (i) through (vii) Indebtedness shall not
include (a) obligations of CBS and its Subsidiaries in
connection with Discontinued Operations and (b) obligations
(other than under the Existing Credit Agreement, as amended
and restated, or the Amended and Restated Viacom International
Inc. Credit Agreement, dated as of March 26, 1997, among
Viacom International Inc., the banks parties thereto, The Bank
of New York, Citibank, N.A., Morgan Guaranty Trust Company of
New York, Bank of America NT&SA and The Chase Manhattan Bank,
as Managing Agents, The Bank of New York, as Documentation
Agent, Citibank, N.A., as the Administrative Agent, JP Morgan
Securities Inc. and Bank of America NT&SA, as the Syndication
Agents, the banks identified as Agents on the signature pages
thereof, as Agents, and the banks identified as Co-agents on
the signature pages thereof, as Co-Agents) specifically with
respect to the production, distribution and acquisition of
motion pictures or other programming rights, talent or
publishing rights.
(c) Section 1.1 of the Agreement is hereby amended by
inserting the following definition for the term "New Infinity Credit Agreements"
in the appropriate alphabetical order:
"New Infinity Credit Agreements" shall mean the 364-Day Credit
Agreement and the Five-Year Credit Agreement among Infinity,
the Subsidiary Borrowers (as defined therein) parties thereto,
the lenders named therein, Bank of America, N.A. and
FleetBoston, as syndication agents, The Bank of New York, as
documentation agent and The Chase Manhattan Bank as
administrative agent, as amended, supplemented or otherwise
modified from time to time.
(d) Section 5.6 of the Agreement is hereby amended:
(i) by inserting the words "and the New Infinity Credit
Agreements" before the word "and" in clause (ii) thereof; and
<PAGE> 4
4
(ii) by substituting "$600,000,000" for "$300,000,000" at the
end thereof.
(e) Section 5.7 of the Agreement is hereby amended by
inserting a comma followed by the following words immediately preceding the
colon therein:
provided that as soon as and for so long as the senior
unsecured long-term debt ratings of Infinity are equal to or
greater than A- by S&P and A3 by Moody's for any period, such
condition shall be suspended.
(f) Section 5.8 of the Agreement is hereby amended by
inserting a comma immediately followed by the following words at the end
thereof:
provided that as soon as and for so long as the senior
unsecured long-term debt ratings of Infinity are equal to or
greater than A- by S&P and A3 by Moody's for any period, such
condition shall be suspended.
(g) Section 5.11 of the Agreement is hereby deleted in its
entirety.
SECTION 2. Conditions to Effectiveness. This Amendment shall
become effective as of the date of the consummation of the merger of CBS and
Viacom pursuant to the Agreement and Plan of Merger dated as of September 6,
1999, as amended and restated as of October 8, 1999 and as of November 23, 1999,
by and among CBS Corporation, Viacom Inc. and Viacom/CBS LLC; provided that
Sections 1(d) and 1(g) of this Amendment, shall become effective as of the date
on which the Administrative Agent shall have received counterparts of this
Amendment that, when taken together, bear the signatures of the Borrower and the
Required Lenders under the Agreement.
Except as expressly set forth above, all the provisions of the
Agreement are hereby ratified and confirmed by all the parties and shall remain
in full force and effect. All references in the Agreement to "this Agreement"
shall be read as references to the Agreement, as amended by this Amendment.
SECTION 3. Counterparts. This Amendment may be executed in two
or more counterparts, all of which shall be considered one and the same
agreement.
<PAGE> 5
5
SECTION 4. Applicable Law. This Amendment 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.
IN WITNESS WHEREOF, each of the parties hereto have executed
this Amendment as of the date first above written.
INFINITY BROADCASTING CORPORATION,
by /s/ Farid Suleman
----------------------------------
Name: Farid Suleman
Title: Executive Vice President,
Chief Financial Officer
and Treasurer
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Administrative Agent,
by /s/ Dennis Wilczek
---------------------------------
Name: Dennis Wilczek
Title: Associate
CBS CORPORATION, as guarantor,
by /s/ Farid Suleman
---------------------------------
Farid Suleman
Sr. Vice President, Finance
and Treasurer
<PAGE> 1
Exhibit 10.5
EXECUTION COPY
$1,450,000,000
FIVE-YEAR CREDIT AGREEMENT
among
INFINITY BROADCASTING CORPORATION,
THE SUBSIDIARY BORROWERS PARTIES HERETO,
THE LENDERS NAMED HEREIN,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
FLEET NATIONAL BANK and BANK OF AMERICA, N.A.,
as Co-Syndication Agents
and
BANK OF NEW YORK,
as Documentation Agent,
Dated as of May 3, 2000
CHASE SECURITIES INC. and FLEETBOSTON ROBERTSON STEPHENS INC.,
as Joint Lead Arrangers and Joint Book Managers
BANK OF AMERICA, N.A. and BANK OF NEW YORK,
as Arrangers
<PAGE> 2
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS ....................................................... 1
SECTION 1.1. Defined Terms ...................................... 1
SECTION 1.2. Terms Generally .................................... 17
ARTICLE II.
THE CREDITS ....................................................... 18
SECTION 2.1. Commitments ........................................ 18
SECTION 2.2. Revolving Credit Loans; Competitive Loans .......... 18
SECTION 2.3. Competitive Bid Procedure .......................... 18
SECTION 2.4. Revolving Credit Borrowing Procedure ............... 21
SECTION 2.5. Repayment of Loans ................................. 21
SECTION 2.6. Swingline Loans .................................... 21
SECTION 2.7. Letters of Credit .................................. 24
SECTION 2.8. Conversion and Continuation Options ................ 27
SECTION 2.9. Fees ............................................... 28
SECTION 2.10. Interest on Loans; Eurodollar Tranches; Etc ........ 29
SECTION 2.11. Default Interest ................................... 30
SECTION 2.12. Alternate Rate of Interest ......................... 30
SECTION 2.13. Termination, Reduction and Increase of Commitments . 30
SECTION 2.14. Optional Prepayments of Revolving Credit Loans ..... 32
SECTION 2.15. Reserve Requirements ............................... 32
SECTION 2.16. Indemnity .......................................... 34
SECTION 2.17. Pro Rata Treatment; Funding Matters;
Evidence of Debt ................................... 34
SECTION 2.18. Sharing of Setoffs ................................. 35
SECTION 2.19. Payments ........................................... 36
SECTION 2.20. Taxes .............................................. 36
SECTION 2.21. Termination or Assignment of Commitments Under
Certain Circumstances .............................. 38
SECTION 2.22. Currency Equivalents ............................... 38
SECTION 2.23. Judgment ........................................... 39
ARTICLE III.
REPRESENTATIONS AND WARRANTIES .................................... 40
SECTION 3.1. Corporate Existence ................................ 40
SECTION 3.2. Financial Condition ................................ 40
SECTION 3.3. Litigation ......................................... 40
SECTION 3.4. No Breach, etc ..................................... 41
SECTION 3.5. Corporate Action ................................... 41
SECTION 3.6. Approvals .......................................... 41
SECTION 3.7. ERISA .............................................. 41
i
<PAGE> 3
SECTION 3.8. Taxes .............................................. 41
SECTION 3.9. Investment Company Act ............................. 41
SECTION 3.10. Hazardous Materials ................................ 42
SECTION 3.11. Material Subsidiaries .............................. 42
SECTION 3.12. No Material Misstatements .......................... 42
SECTION 3.13. Ownership of Property .............................. 42
SECTION 3.14. Intellectual Property .............................. 42
SECTION 3.15. FCC Matters ........................................ 42
ARTICLE IV.
CONDITIONS OF EFFECTIVENESS AND LENDING ........................... 43
SECTION 4.1. Effectiveness ...................................... 43
SECTION 4.2. Initial Loans to Subsidiary Borrowers .............. 43
SECTION 4.3. All Credit Events .................................. 43
ARTICLE V.
COVENANTS ......................................................... 44
SECTION 5.1. Financial Statements ............................... 44
SECTION 5.2. Corporate Existence, Etc ........................... 46
SECTION 5.3. Insurance .......................................... 47
SECTION 5.4. Prohibition of Fundamental Changes ................. 47
SECTION 5.5. Limitation on Liens ................................ 48
SECTION 5.6. Limitation on Subsidiary Indebtedness .............. 49
SECTION 5.7. Consolidated Leverage Ratio ........................ 50
SECTION 5.8. Consolidated Coverage Ratio ........................ 50
SECTION 5.9. Use of Proceeds .................................... 50
SECTION 5.10. Transactions with Affiliates ....................... 50
ARTICLE VI.
EVENTS OF DEFAULT ................................................. 50
ARTICLE VII.
THE AGENTS ........................................................ 53
ARTICLE VIII.
GUARANTEE ......................................................... 55
SECTION 8.1. Guarantee .......................................... 55
SECTION 8.2. No Subrogation, etc ................................ 55
SECTION 8.3. Amendments, etc. with respect to the Subsidiary
Borrower Obligations ............................... 56
SECTION 8.4. Guarantee Absolute and Unconditional ............... 56
SECTION 8.5. Reinstatement ...................................... 57
SECTION 8.6. Payments ........................................... 57
ii
<PAGE> 4
ARTICLE IX.
MISCELLANEOUS ..................................................... 57
SECTION 9.1. Notices ............................................ 57
SECTION 9.2. Survival of Agreement .............................. 58
SECTION 9.3. Binding Effect ..................................... 58
SECTION 9.4. Successors and Assigns ............................. 58
SECTION 9.5. Expenses; Indemnity ................................ 61
SECTION 9.6. Right of Setoff .................................... 62
SECTION 9.7. APPLICABLE LAW ..................................... 62
SECTION 9.8. Waivers; Amendment ................................. 62
SECTION 9.9. Entire Agreement ................................... 63
SECTION 9.10. Waiver of Jury Trial ............................... 63
SECTION 9.11. Severability ....................................... 63
SECTION 9.12. Counterparts ....................................... 63
SECTION 9.13. Headings ........................................... 63
SECTION 9.14. Jurisdiction; Consent to Service of Process ........ 63
SECTION 9.15. Confidentiality .................................... 64
EXHIBITS
Exhibit A Administrative Questionnaire
Exhibit B-1 Form of Competitive Bid Request
Exhibit B-2 Form of Notice of Competitive Bid Request
Exhibit B-3 Form of Competitive Bid
Exhibit B-4 Form of Revolving Credit Borrowing Request
Exhibit B-5 Form of Swingline Borrowing Request
Exhibit B-6 Form of Notice of Designated Letter of Credit
Exhibit B-7 Form of Subsidiary Borrower Designation
Exhibit B-8 Form of Subsidiary Borrower Request
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Confidentiality Agreement
Exhibit E Form of Closing Certificate
Exhibit F Form of Issuing Lender Agreement
Exhibit G Form of New Lender Supplement
Exhibit H Form of Commitment Increase Letter
SCHEDULES
Schedule 1.1 Commitments; Addresses for Notices
Schedule 3.11 Material Subsidiaries
Schedule 5.5(m) Certain Infinity Assets
iii
<PAGE> 5
FIVE-YEAR CREDIT AGREEMENT entered into as of May 3, 2000,
among INFINITY BROADCASTING CORPORATION, a Delaware corporation ("Infinity"),
each Subsidiary Borrower (as herein defined); the lenders whose names appear on
Schedule 1.1 hereto or who subsequently become parties hereto as provided herein
(the "Lenders"); THE CHASE MANHATTAN BANK, a New York banking corporation
("Chase"), as administrative agent for the Lenders; FLEET NATIONAL BANK, a
national banking corporation, and BANK OF AMERICA, N.A., a national banking
association, each as co-syndication agent for the Lenders (in such capacity, the
"Co-Syndication Agents"); and BANK OF NEW YORK, a New York banking corporation,
as documentation agent for the Lenders (in such capacity, the "Documentation
Agent").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Infinity has requested that the Lenders provide
extensions of credit to it and to certain Subsidiary Borrowers to be used for
general corporate purposes (including, without limitation, acquisitions and
commercial paper backup), which extensions of credit shall enable the Borrowers
to borrow loans in an aggregate amount not to exceed $1.45 billion on a
revolving credit basis on and after the Closing Date (as herein defined) and
prior to the Revolving Credit Maturity Date (as herein defined); and
WHEREAS, the Lenders are willing to extend credit to the
Borrowers on the terms and subject to the conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Loan" shall mean (a) any Revolving Credit Loan bearing
interest at a rate determined by reference to the Alternate Base Rate in
accordance with the provisions of Article II and (b) any ABR Swingline Loan.
"ABR Revolving Credit Loan" shall mean any Revolving Credit
Loan which is an ABR Loan.
"ABR Swingline Exposures" shall mean at any time the aggregate
principal amount at such time of the outstanding ABR Swingline Loans. The ABR
Swingline Exposure of any Lender at any time shall mean its Revolving Credit
Percentage of the aggregate ABR Swingline Exposures at such time.
"ABR Swingline Loan" shall have the meaning assigned to such
term in Section 2.6(a).
"Absolute Rate Loan" shall mean any Competitive Loan bearing
interest at a fixed percentage rate per annum (expressed in the form of a
decimal rounded to no more than four decimal places) specified by the Lender
making such Loan in its Competitive Bid.
<PAGE> 6
2
"Administrative Agent" shall mean Chase, together with its
affiliates, as an arranger of the Commitments and as the administrative agent
for the Lenders under this Agreement, and any successor thereto pursuant to
Article VII.
"Administrative Agent Fee Letter" shall mean the Fee Letter
with respect to this Agreement between Infinity and the Administrative Agent, as
amended, supplemented or otherwise modified from time to time.
"Administrative Agent's Fees" shall have the meaning assigned
to such term in Section 2.9(c).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A hereto.
"Affiliate" shall mean, as to Infinity, any Person which
directly or indirectly controls, is under common control with or is controlled
by Infinity. As used in this definition, "control" (including, with correlative
meanings, "controlled by" and "under common control with") shall mean
possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise); provided that, in any
event, any Person which owns directly or indirectly 10% or more of the
securities having ordinary voting power for the election of directors or other
governing body of a corporation or 10% or more of the partnership or other
ownership interests of any other Person (other than as a limited partner of such
other Person) will be deemed to control such corporation or other Person.
Notwithstanding the foregoing, (a) no individual shall be deemed to be an
Affiliate of Infinity solely by reason of his or her being an officer, director
or employee of Infinity or any of its Subsidiaries and (b) CBS or, following the
consummation of the Viacom Merger, Viacom and Infinity and their Subsidiaries
shall not be deemed to be Affiliates of each other, unless expressly stated to
the contrary.
"Agents" shall mean the collective reference to the
Administrative Agent, the Joint Lead Arrangers and Joint Book Managers, the
Arrangers, the Documentation Agent and the Co-Syndication Agents.
"Aggregate LC Exposure" shall mean, at any time, the sum of
(a) the aggregate undrawn amount of all Letters of Credit outstanding at such
time and (b) the aggregate amount which has been drawn under Letters of Credit
but for which the applicable Issuing Lender or the Lenders, as the case may be,
have not been reimbursed by Infinity at such time.
"Agreement" shall mean this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof, "Prime
Rate" shall mean the rate of interest per annum publicly announced from time to
time by the Lender serving as the Administrative Agent as its prime rate in
effect at its principal office in New York City; 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
<PAGE> 7
3
quotations for the day of such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by it. If for
any reason the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance with
the terms thereof, the Alternate Base Rate shall be the Prime Rate until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Commitment Fee Rate" shall mean the "Applicable
Commitment Fee Rate" determined in accordance with the Pricing Grid set forth in
Annex I hereto.
"Applicable Eurodollar Margin" shall mean the "Applicable
Eurodollar Margin" determined in accordance with the Pricing Grid set forth in
Annex I hereto.
"Applicable LC Fee Rate" shall mean (a) with respect to
Financial Letters of Credit, the "Applicable Financial LC Fee Rate" determined
in accordance with the Pricing Grid set forth in Annex I hereto and (b) with
respect to Non-Financial Letters of Credit, the "Applicable Non-Financial LC Fee
Rate" determined in accordance with the Pricing Grid set forth in Annex I
hereto.
"Applicable Utilization Fee Rate" shall mean the "Applicable
Utilization Fee Rate" determined in accordance with the Pricing Grid set forth
in Annex I hereto.
"Arrangers" shall mean Bank of America, N.A., a national
banking association, and Bank of New York, a New York banking corporation.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee, and accepted by the
Administrative Agent, in the form of Exhibit C.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Borrower" shall mean, as applicable, Infinity or the relevant
Subsidiary Borrower.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for international business (including
dealings in Dollar deposits) in the London interbank market.
"Capital Lease Obligations" of any Person shall mean the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted 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
<PAGE> 8
4
interests in a Person (other than a corporation) and any and all warrants or
options to purchase any of the foregoing.
"CBS" shall mean CBS Corporation, a Pennsylvania corporation.
"Change of Control" shall mean that CBS, or, following the
consummation of the Viacom Merger, Viacom, shall have ceased to hold, directly
or indirectly, beneficial ownership (within the meaning of Rules 13d-3 and 13d-5
promulgated by the SEC pursuant to the Exchange Act) of more than 50% of the
outstanding shares of voting and economic stock of Infinity.
"Chase" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Closing Certificate" shall mean a certificate, substantially
in the form of Exhibit E.
"Closing Date" shall mean May 3, 2000.
"Code" shall mean the Internal Revenue Code of 1986, as the
same may be amended from time to time.
"Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Revolving Credit Loans pursuant to Section
2.1, to make or refund ABR Swingline Loans pursuant to Section 2.6 and to issue
or participate in Letters of Credit pursuant to Section 2.7, as set forth on
Schedule 1.1, as such Lender's Commitment may be permanently terminated or
reduced from time to time pursuant to Section 2.13 or changed pursuant to
Section 9.4.
"Commitment Fee Calculation Amount" shall mean, as to any
Lender at any time, an amount equal to the excess, if any, of (a) such Lender's
Commitment over (b) the sum of (i) the aggregate principal amount of all
Revolving Credit Loans made by such Lender then outstanding, (ii) such Lender's
LC Exposure at such time and (iii), in the case of each Swingline Lender, the
aggregate principal amount of all Quoted Swingline Loans made by such Swingline
Lender then outstanding.
"Commitment Fees" shall mean all fees payable pursuant to
Section 2.9(a).
"Commitment Increase Date" shall have the meaning assigned to
such term in Section 2.13(d).
"Commitment Increase Letter" shall have the meaning assigned
to such term in Section 2.13(d) and shall be substantially in the form of
Exhibit H.
"Commitment Utilization Percentage" shall mean on any day the
percentage equivalent to a fraction (a) the numerator of which is the sum of the
aggregate outstanding principal amount of Revolving Credit Loans, including the
aggregate outstanding principal amount of Letters of Credit, Swingline Loans and
Competitive Loans, and (b) the denominator of which is the Total Commitment (or,
on any day after termination of the Commitments, the Total Commitment in effect
immediately preceding such termination).
"Communications Act" shall mean the Communications Act of
1934, as amended.
"Competitive Bid" shall mean an offer to make a Competitive
Loan pursuant to Section 2.3.
<PAGE> 9
5
"Competitive Bid Rate" shall mean, as to any Competitive Bid
made pursuant to Section 2.3(b), (a) in the case of a Eurodollar Competitive
Loan, the Margin, and (b) in the case of an Absolute Rate Loan, the fixed rate
of interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant
to Section 2.3 in the form of Exhibit B-1.
"Competitive Loan" shall mean a Loan from a Lender to a
Borrower pursuant to the bidding procedure described in Section 2.3. Each
Competitive Loan shall be a Eurodollar Competitive Loan or an Absolute Rate Loan
and, subject to Section 2.3(a), may be denominated in Dollars or a Foreign
Currency.
"Compliance Certificate" shall have the meaning assigned to
such term in Section 5.1.
"Confidential Information" shall have the meaning assigned to
such term in Section 9.15(a).
"Confidentiality Agreement" shall mean a confidentiality
agreement substantially in the form of Exhibit D, with such changes as Infinity
may approve.
"Consolidated Coverage Ratio" shall mean, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Interest
Expense for such period.
"Consolidated EBITDA" shall mean, with respect to Infinity and
its Consolidated Subsidiaries for any period, operating profit (loss), plus
other income (loss), plus interest income, plus depreciation and amortization
(excluding amortization related to programming rights), excluding (a) gains
(losses) on sales of assets (except (I) gains (losses) on sales of inventory
sold in the ordinary course of business and (II) gains (losses) on sales of
other assets if such gains (losses) are less than $10,000,000 individually and
less than $50,000,000 in the aggregate during such period), and (b) other
non-cash items (including (i) provisions for losses and additions to valuation
allowances, (ii) provisions for restructuring, litigation and environmental
reserves and losses on the Disposition of businesses and (iii) pension
settlement charges), in each case determined for such period on a basis
consistent with that reported in Infinity's Form 10-K for the fiscal year ended
December 31, 1999 filed with the SEC, minus cash payments made during such
period in respect of non-cash charges taken during any previous period
(excluding cash payments in respect of non-cash charges taken prior to December
31, 1999).
"Consolidated Interest Expense" shall mean, for any period,
the gross interest expense of Infinity and its Consolidated Subsidiaries for
such period, computed and consolidated in accordance with GAAP, but excluding
the amortization of deferred financing charges for such period.
"Consolidated Leverage Ratio" shall mean the ratio of
Consolidated Total Indebtedness to Consolidated Total Capitalization.
"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.
<PAGE> 10
6
"Consolidated Total Capitalization" shall mean, at a
particular date, the sum of (a) Consolidated Net Worth plus (b) Consolidated
Total Indebtedness as at such date.
"Consolidated Total Indebtedness" shall mean all Indebtedness
of Infinity and its Consolidated Subsidiaries (excluding Indebtedness of
Infinity owing to any of its Consolidated Subsidiaries or Indebtedness of any
Consolidated Subsidiary of Infinity owing to Infinity or any other Consolidated
Subsidiary of Infinity), as determined on a consolidated basis in accordance
with GAAP.
"Co-Syndication Agents" shall have the meaning assigned to
such term in the preamble hereto.
"Credit Event" shall mean the making of any Loan or the
issuance of any Letter of Credit hereunder (including the designation of a
Designated Letter of Credit as a "Letter of Credit" hereunder). It is understood
that conversions and continuations pursuant to Section 2.8 do not constitute
"Credit Events".
"Debt Rating" shall mean the rating applicable to Infinity's
senior, unsecured, non-credit-enhanced long-term indebtedness for borrowed
money, as assigned by either Rating Agency.
"Default" shall mean any event or condition which upon notice,
lapse of time or both would constitute an Event of Default.
"Designated Letters of Credit" shall mean each letter of
credit issued by an Issuing Lender that (a) is not a Letter of Credit hereunder
at the time of its issuance and (b) is designated on or after the Closing Date
by Infinity, with the consent of such Issuing Lender, as a "Letter of Credit"
hereunder by written notice to the Administrative Agent in the form of Exhibit
B-6.
"Disposition" shall mean, with respect to any Property, any
sale, lease, assignment, conveyance, transfer or other disposition thereof; and
the terms "Dispose" and "Disposed of" shall have correlative meanings.
"Documentation Agent" shall have the meaning assigned to such
term in the preamble hereto.
"Dollars" or "$" shall mean lawful money of the United States
of America.
"Environmental Laws" shall mean any and all Federal, state,
local and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or other governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment, including, without limitation, ambient air, surface 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.
<PAGE> 11
7
"ERISA Affiliate" shall mean, with respect to Infinity, any
trade or business (whether or not incorporated) that is a member of a group of
which Infinity is a member and which is treated as a single employer under
Section 414 of the Code.
"Eurodollar Competitive Loan" shall mean any Competitive Loan
which is a Eurodollar Loan.
"Eurodollar Loan" shall mean any Loan bearing interest at a
rate determined by reference to the Eurodollar Rate.
"Eurodollar Rate" shall mean, with respect to an Interest
Period pertaining to any Eurodollar Loan, the rate of interest determined on the
basis of the rate for deposits in Dollars or the relevant Foreign Currency, as
the case may be, for a period equal to such Interest Period commencing on the
first day of such Interest Period appearing on Page 3750 (or, in the case of any
Foreign Currency, the applicable page) of the Telerate Screen as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest Period.
In the event that such rate does not appear on such page of the Telerate Screen
(or otherwise on the Telerate Service), the "Eurodollar Rate" shall instead be
the interest rate per annum (rounded upwards, if necessary, to the next 1/16 of
1%) equal to the average of the rates at which deposits in Dollars or the
relevant Foreign Currency, as the case may be, approximately equal in principal
amount to (a) in the case of a Eurodollar Tranche, the portion of such
Eurodollar Tranche of the Lender serving as Administrative Agent and (b) in the
case of a Eurodollar Competitive Loan, a principal amount that would have been
the portion of such Loan of the Lender serving as the Administrative Agent had
such Loan been a Eurodollar Revolving Credit Loan, and for a maturity comparable
to such Interest Period, are offered by the principal London offices of the
Reference Banks (or, if any Reference Bank does not at the time maintain a
London office, the principal London office of any affiliate of such Reference
Bank) for immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Revolving Credit Loan" shall mean any Revolving
Credit Loan which is a Eurodollar Loan.
"Eurodollar Tranche" shall mean the collective reference to
Eurodollar Revolving Credit Loans made by the Lenders, the then current Interest
Periods with respect to all of which begin on the same date and end on the same
later date (whether or not such Loans shall originally have been made on the
same day).
"Event of Default" shall have the meaning assigned to such
term in Article VI; provided that any requirement for the giving of notice, the
lapse of time, or both, has been satisfied.
"Exchange Act Report" shall have the meaning assigned to such
term in Section 3.3.
"Excess Utilization Day" shall mean each day (a) which is
during any consecutive period of more than 91 days during each of which the
Commitment Utilization Percentage exceeds 33 1/3%, (b) 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
<PAGE> 12
8
any intercompany Indebtedness created by the declaration of a note payable
dividend by any Subsidiary to Infinity or any of its other Subsidiaries) and
(c) Specified Section 5.5(n) Indebtedness.
"Existing CBS Credit Agreement"shall mean the Amended and
Restated Credit Agreement, dated as of December 10, 1999, as amended, modified
or supplemented from time to time, among CBS, as borrower, and Morgan 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 Morgan
Guaranty Trust Company of New York, as administrative agent.
"Facility Exposure" shall mean, with respect to any Lender,
the sum of (a) the Outstanding Revolving Extensions of Credit of such Lender,
(b) the aggregate outstanding principal amount of any Competitive Loans made by
such Lender and (c) in the case of a Swingline Lender, the aggregate outstanding
principal amount of any Quoted Swingline Loans made by such Swingline Lender.
"FCC" shall mean the Federal Communications Commission.
"FCC Licenses" shall mean, with respect to Infinity or any of
its Subsidiaries, any radio, television or other license, permit, certificate of
compliance or authorization issued by the FCC and required for the operation of
its respective radio and television broadcast stations.
"Federal Funds Effective Rate" shall have the meaning assigned
to such term in the definition of "Alternate Base Rate".
"Fees" shall mean the Commitment Fees, the Administrative
Agent's Fees, the Issuing Lender Fees, the LC Fees and the Utilization Fees.
"Financial Covenants" shall have the meaning assigned to such
term in Section 1.2(b).
"Financial Letter of Credit" shall mean any Letter of Credit
that, as determined by the Administrative Agent, (a) supports a financial
obligation and (b) qualifies for the 100% credit conversion factor under the
applicable Bank for International Settlements guidelines.
"Financial Officer" of any corporation shall mean its Chief
Financial Officer, its Vice President and Treasurer or its Vice President and
Chief Accounting Officer or, in each case, any comparable officer or any Person
designated by any such officer.
"Foreign Currency" shall mean any currency other than Dollars
which is readily transferable and readily convertible by the relevant Lender or
Issuing Lender, as the case may be, into Dollars in the London interbank market.
"Foreign Exchange Rate" shall mean, with respect to any
Foreign Currency on a particular date, the rate at which such Foreign Currency
may be exchanged into Dollars, determined by reference to the selling rate in
respect of such Foreign Currency published in the "Wall Street Journal" on the
relevant date of determination. In the event that such rate is not, or ceases to
be, so published by
<PAGE> 13
9
the "Wall Street Journal", the "Foreign Exchange Rate" with respect to such
Foreign Currency shall be determined by reference to such other publicly
available source for determining exchange rates as may be agreed upon by the
Administrative Agent and Infinity or, in the absence of such agreement, such
"Foreign Exchange Rate" shall instead be the Administrative Agent's spot rate of
exchange in the interbank market where its foreign currency exchange operations
in respect of such Foreign Currency are then being conducted, at or about 12:00
noon, local time, at such date for the purchase of Dollars with such Foreign
Currency, for delivery two banking days later.
"GAAP" shall mean generally accepted accounting principles
applied on a consistent basis (but subject to changes approved by Infinity's
independent public accountants).
"Governmental Authority" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Granting Bank" shall have to meaning specified in Section
9.4(i).
"Guarantee" of or by any Person shall mean any obligation,
contingent or otherwise, of such Person guaranteeing or entered into with the
purpose of guaranteeing any Indebtedness of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase Property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (c) to maintain working capital, equity capital
or other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness; provided,, however, that
the term "Guarantee" shall not include endorsements for collection or deposit,
in either case in the ordinary course of business.
"Indebtedness" of any Person shall mean, without duplication,
(a) all obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar instruments, (c)
all obligations of such Person upon which interest charges are customarily paid,
(d) all obligations of such Person under conditional sale or other title
retention agreements relating to Property or assets purchased by such Person,
(e) all obligations of such Person issued or assumed as the deferred purchase
price of Property or services, (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on Property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person and (i) all obligations of such Person as an account
party in respect of outstanding letters of credit (whether or not drawn) and
bankers' acceptances; provided,, however, that Indebtedness shall not include
(i) trade accounts payable arising in the ordinary course of business, (ii)
deferred compensation, (iii) any Indebtedness of such Person to the extent (A)
such Indebtedness does not appear on the financial 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.
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"Indebtedness for Borrowed Money" shall mean Indebtedness of
the type described in clause (a) or (b) of the definition of "Indebtedness" and
any Guarantee thereof.
"Infinity" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Information" shall have the meaning assigned to such term in
Section 3.12.
"Intellectual Property" shall mean the collective reference to
patents, trademarks (registered or unregistered), trade names, service marks,
assumed names, copyrights, technology, know-how and processes.
"Interest Payment Date" shall mean (a) with respect to any
Eurodollar Loan or Absolute Rate Loan, the last day of the Interest Period
applicable thereto and, in the case of a Eurodollar Loan with an Interest Period
of more than three months' duration or an Absolute Rate Loan with an Interest
Period of more than 90 days' duration, each day that would have been an Interest
Payment Date for such Loan had successive Interest Periods of three months'
duration or 90 days' duration, as the case may be, been applicable to such Loan
and, in addition, the date of any conversion of any Eurodollar Revolving Credit
Loan to an ABR Loan, the date of repayment or prepayment of any Eurodollar Loan
and the applicable Maturity Date; (b) with respect to any ABR Loan (other than
an ABR Swingline Loan which is not an Unrefunded Swingline Loan), the last day
of each March, June, September and December and the applicable Maturity Date;
(c) with respect to any ABR Swingline Loan (other than an Unrefunded Swingline
Loan), the earlier of (i) the day that is five Business Days after such Loan is
made and (ii) the Revolving Credit Maturity Date and (d) with respect to any
Quoted Swingline Loan, the date established as such by the relevant Swingline
Borrower and the relevant Swingline Lender prior to the making thereof (but in
any event no later than the Revolving Credit Maturity Date).
"Interest Period" shall mean (a) as to any Eurodollar Loan,
the period commencing on the borrowing date or conversion date of such Loan, or
on the last day of the immediately preceding Interest Period applicable to such
Loan, as the case may be, and ending on the numerically corresponding day (or,
if there is no numerically corresponding day, on the last day) in the calendar
month that is 7 days (subject to the prior consent of each Lender) or 1, 2, 3 or
6 months or (subject to the prior consent of each Lender) 9 or 12 months
thereafter, as the relevant Borrower may elect, and (b) as to any Absolute Rate
Loan, the period commencing on the date of such Loan and ending on the date
specified in the Competitive Bids in which the offer to make such Absolute Rate
Loan was extended; provided, however, that (i) if any Interest Period would end
on a day other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless, in the case of Eurodollar Loans only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day and
(ii) notwithstanding anything to the contrary herein, no Borrower may select an
Interest Period which would end after the Maturity Date applicable to the
relevant Loan. Interest shall accrue from and including that first day of an
Interest Period to but excluding the last day of such Interest Period.
"Interim Certificate" shall have the meaning assigned to such
term in Annex I hereto.
"Issuing Lender" shall mean any Lender designated as an
Issuing Lender in an Issuing Lender Agreement executed by such Lender, Infinity
and the Administrative Agent; provided, that the Issuing Lender may, in its
discretion, arrange for one or more Letters of Credit to be issued by any of its
Affiliates (in which case the term "Issuing Lender" shall include such Affiliate
with respect to Letters of Credit issued by such Affiliate).
<PAGE> 15
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"Issuing Lender Agreement" shall mean an agreement,
substantially in the form of Exhibit F, executed by a Lender, Infinity, and the
Administrative Agent pursuant to which such Lender agrees to become an Issuing
Lender hereunder.
"Issuing Lender Fees" shall mean, as to any Issuing Lender,
the fees set forth in the applicable Issuing Lender Agreement.
"LC Disbursement" shall mean any payment or disbursement made
by an Issuing Lender under or pursuant to a Letter of Credit.
"LC Exposure" shall mean, as to each Lender, such Lender's
Revolving Credit Percentage of the Aggregate LC Exposure.
"LC Fee" shall have the meaning assigned such term in Section
2.9(b).
"Lead Arrangers" shall mean Chase Securities Inc., a New York corporation, and
FleetBoston Robertson Stephens Inc., a national banking corporation.
"Lenders" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Letters of Credit" shall mean letters of credit or bank
guarantees issued by an Issuing Lender for the account of Infinity pursuant to
Section 2.7(including any Designated Letters of Credit).
"Lien" shall mean, with respect to any asset or Property, (a)
any mortgage, deed of trust, lien, pledge, encumbrance, charge or security
interest in or on such asset or Property and (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title retention
agreement relating to such asset or Property.
"Loan" shall mean any loan made by a Lender hereunder.
"Margin" shall mean, as to any Eurodollar Competitive Loan,
the margin (expressed as a percentage rate per annum in the form of a decimal
rounded to no more than four places) to be added to or subtracted from the
Eurodollar Rate in order to determine the interest rate applicable to such Loan,
as specified in the Competitive Bid relating to such Loan.
"Margin Stock" shall have the meaning assigned to such term
under Regulation U.
"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.
<PAGE> 16
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"Material Disposition" shall mean any Disposition of Property
or series of related Dispositions of Property which yields gross proceeds to
Infinity or any of its Subsidiaries (valued at the initial principal amount
thereof in the case of non-cash proceeds consisting of notes or other debt
securities and valued at fair market value in the case of other non-cash
proceeds) in excess of $50,000,000.
"Material Subsidiary" shall mean any Subsidiary of Infinity
except for Subsidiaries which in the aggregate would not constitute a
significant subsidiary under Regulation S-X of the SEC; provided, that each
Subsidiary Borrower shall in any event constitute a Material Subsidiary.
"Maturity Date" shall mean (a) in the case of the Revolving
Credit Loans and the ABR Swingline Loans, the Revolving Credit Maturity Date,
(b) in the case of the Quoted Swingline Loans, the date established as such by
the relevant Swingline Borrower and the relevant Swingline Lender prior to the
making thereof (but in any event no later than the Revolving Credit Maturity
Date) and (c) in the case of Competitive Loans, the last day of the Interest
Period applicable thereto, as specified in the related Competitive Bid Request.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 3(37) of ERISA to which contributions have been made by
Infinity or any ERISA Affiliate of Infinity and which is covered by Title IV of
ERISA.
"Net Cash Proceeds" shall mean, in connection with any
Disposition of all or any material part of any business unit, the proceeds
thereof in the form of cash and cash equivalents (including any such proceeds
received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or otherwise, but
only as and when received) of such Disposition, net of (i) attorneys' fees,
accountants' fees, investment banking fees and other customary fees and expenses
actually incurred in connection therewith, (ii) taxes paid or reasonably
estimated to be payable on a current basis as a result thereof (after taking
into account any available tax credits or deductions) and (iii) any cash
purchase price adjustments paid in connection therewith (but only as and when
paid).
"New Lender" shall have the meaning assigned to such term in
Section 2.13(d).
"New Lender Supplement" shall mean the agreement made pursuant
to Section 2.13(d) substantially in the form of Exhibit G.
"Non-Financial Letter of Credit" shall mean any Letter of
Credit that is not a Financial Letter of Credit.
"Non-U.S. Person" shall have the meaning assigned to such term
in Section 2.20(f).
"Original Closing Date" shall mean August 29, 1996.
"Outstanding Revolving Extensions of Credit" shall mean, as to
any Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans made by such Lender then
outstanding, (b) such Lender's LC Exposure at such time and (c) such Lender's
ABR Swingline Exposure at such time.
<PAGE> 17
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"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA, or any successor thereto.
"Person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership, limited liability
company or other entity, or any government or any agency or political
subdivision thereof.
"Plan" shall mean any employee pension benefit plan as defined
in Section 3(2) of ERISA (other than a Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section 412 of the Code and which is
maintained for employees of Infinity or any ERISA Affiliate.
"Prime Rate" shall have the meaning assigned to such term in
the definition of "Alternate Base Rate".
"Pro Forma Period" shall have the meaning assigned to such
term in Section 1.2(c).
"Projections" shall have the meaning assigned to such term in
Section 3.12.
"Property" shall mean any right or interest in or to property
of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.
"Quoted Swingline Loans" shall have the meaning assigned to
such term in Section 2.6(a).
"Quoted Swingline Rate" shall have the meaning assigned to
such term in Section 2.6(a).
"Rating Agencies" shall mean S&P and Moody's.
"Reference Banks" shall mean Chase and such other banks
designated by the Administrative Agent from time to time.
"Register" shall have the meaning assigned to such term in
Section 9.4(d).
"Regulation D" shall mean Regulation D of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"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).
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"Revolving Credit Borrowing Request" shall mean a request made
pursuant to Section 2.4 in the form of Exhibit B-4.
"Revolving Credit Loans" shall mean the revolving loans made
by the Lenders to any Borrower pursuant to Section 2.4. Each Revolving Credit
Loan shall be a Eurodollar Loan or an ABR Loan.
"Revolving Credit Maturity Date" shall mean May 3, 2005
"Revolving Credit Percentage" of any Lender at any time shall
mean the percentage of the aggregate Commitments (or, following any termination
of all the Commitments, the Commitments most recently in effect) represented by
such Lender's Commitment (or, following any such termination, the Commitment of
such Lender most recently in effect).
"Sale/Leaseback" shall mean any lease, whether an operating
lease or a capital lease, whereby Infinity or any of its Subsidiaries, directly
or indirectly, becomes or remains liable as lessee or as guarantor or other
surety, of any Property whether now owned or hereafter acquired, (a) that
Infinity or any of its Subsidiaries, as the case may be, has sold or transferred
or is to sell or transfer to any other Person (other than Infinity or any of its
Subsidiaries), or (b) that is acquired by any other Person, as part of a
financing transaction to which Infinity or any of its Subsidiaries is a party,
in contemplation of leasing such Property to Infinity or any of its
Subsidiaries, as the case may be.
"Sale/Leaseback Attributable Debt" shall mean, for any
Sale/Leaseback, the present value (discounted at the rate of interest implicit
in such Sale/Leaseback, determined in accordance with GAAP or, in the event that
such rate of interest is not reasonably determinable, discounted at the interest
rate applicable to an ABR Revolving Credit Loan on the date of the commencement
of such transaction), as of the date on which the amount thereof is to be
determined, of the obligation of the lessee for net rental payments during the
remaining term of such Sale/Leaseback (including any period for which such
Sale/Leaseback may, at the option of the lessor, be extended). In the case of
any master lease agreement, each fixed or capital asset subject thereto (or any
related group of such assets for which the lease terms commence at the same
time) shall be deemed to be the subject of a separate Sale/Leaseback, and, to
the extent that any fixed or capital asset is the subject of a Sale/Leaseback
and then of another, the Sale/Leaseback Attributable Debt will be deemed to be
incurred only under the first such Sale/Leaseback. For the purposes of Section
5.5(m), the Sale/Leaseback Attributable Debt of any Subsidiary of Infinity which
is not a Wholly Owned Subsidiary shall be deemed to be the amount determined in
accordance with the foregoing provisions of this definition multiplied by
Infinity's direct or indirect percentage common equity interest in such
Subsidiary at the date of determination.
"S&P" shall mean Standard & Poor's Ratings Services.
"SEC" shall mean the Securities and Exchange Commission.
"Specified Section 5.5(n) Indebtedness" shall have the meaning
assigned to such term in Section 5.5(n).
"SPC" shall have the meaning specified in Section 9.4(i).
"Spot Rate" shall mean, at any date, the Administrative
Agent's or Lender's, as the case may be, (or, for purposes of determinations in
respect of the Aggregate L/C Exposure related to Letters of Credit issued in a
Foreign Currency, the Issuing Lender's or Issuing Lenders', as the case may be)
spot
<PAGE> 19
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buying rate for the relevant Foreign Currency against Dollars as of
approximately 11:00 a.m. (London time) on such date for settlement on the second
Business Day.
"Subsidiary" shall mean, for any Person (the "Parent"), any
corporation, partnership or other entity of which shares of Voting Capital Stock
sufficient to elect a majority of the board of directors or other Persons
performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the happening of
any contingency) are at the time directly or indirectly owned or controlled by
the Parent or one or more of its Subsidiaries or by the Parent and one or more
of its Subsidiaries. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary
or Subsidiaries of Infinity.
"Subsidiary Borrower" shall mean any Subsidiary (a) which is
organized under the laws of the United States of America, any state, territory
or possession thereof or the District of Columbia, (b) which is designated as a
Subsidiary Borrower by Infinity pursuant to a Subsidiary Borrower Designation,
(c) which has delivered to the Administrative Agent a Subsidiary Borrower
Request and (d) whose designation as a Subsidiary Borrower has not been
terminated pursuant to Section 4.2.
"Subsidiary Borrower Designation" shall mean a designation,
substantially in the form of Exhibit B-6, which may be delivered by Infinity and
approved by Infinity and shall be accompanied by a Subsidiary Borrower Request.
"Subsidiary Borrower Obligations" shall mean, with respect to
each Subsidiary Borrower, the unpaid principal of and interest on the Loans made
to such Subsidiary Borrower (including, without limitation, interest accruing
after the maturity of the Loans made to such Subsidiary Borrower and interest
accruing after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to such Subsidiary
Borrower, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) and all other obligations and liabilities of such
Subsidiary Borrower to the Administrative Agent or to any Lender, whether direct
or indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement.
"Subsidiary Borrower Request" shall mean a request,
substantially in the form of Exhibit B-8, which is received by the
Administrative Agent in connection with a Subsidiary Borrower Designation.
"Swingline Borrower" shall mean Infinity and any Subsidiary
Borrower designated as a "Swingline Borrower" by Infinity in a written notice to
the Administrative Agent; provided, that, unless otherwise agreed by the
Administrative Agent, no more than one Subsidiary Borrower may be a Swingline
Borrower at any one time.
"Swingline Commitment" shall mean, (i) with respect to any
Swingline Lender, the Commitment of such Lender to make ABR Swingline Loans
pursuant to Section 2.6, as designated in accordance with Section 2.6(g) and as
set forth on Schedule 1.1, and, (ii) in the aggregate, $300,000,000.
"Swingline Lender" shall mean any Lender designated by
Infinity as a "Swingline Lender" pursuant to Section 2.6(g).
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"Swingline Loans" shall mean the collective reference to the
ABR Swingline Loans and the Quoted Swingline Loans.
"Swingline Percentage" of any Swingline Lender at any time
shall mean the percentage of the aggregate Swingline Commitments represented by
such Swingline Lender's Swingline Commitment.
"Test Period" shall have the meaning assigned to such term in
Section 1.2(c).
"364-Day Credit Agreement" shall mean the 364-day credit
agreement, dated the date hereof, among Infinity, as borrower, each subsidiary
borrower, the lenders party thereto, Chase, as administrative agent, Fleet
National Bank and Bank of America, N.A., as co-syndication agents, and Bank of
New York, as documentation agent.
"Total Commitment" shall mean at any time the aggregate amount
of the Commitments in effect at such time.
"Total Facility Exposure" shall mean at any time the aggregate
amount of the Facility Exposures at such time.
"Total Facility Percentage" shall mean, as to any Lender at
any time, the quotient (expressed as a percentage) of (a) such Lender's
Commitment (or (x) for the purposes of acceleration of the Loans pursuant to
clause (II) of Article VI or (y) if the Commitments have terminated, such
Lender's Facility Exposure) and (b) the aggregate of all Lenders' Commitments
(or (x) for the purposes of acceleration of the Loans pursuant to clause (II) of
Article VI or (y) if the Commitments have terminated, the Total Facility
Exposure).
"Transferee" shall mean any assignee or participant described
in Section 9.4(b) or (f).
"Type" when used in respect of any Loan, shall refer to the
Rate by reference to which interest on such Loan is determined. For purposes
hereof, "Rate" shall mean the Eurodollar Rate, the Alternate Base Rate, the
Quoted Swingline Rate and the rate paid on Absolute Rate Loans.
"Unrefunded Swingline Loans" shall have the meaning assigned
to such term in Section 2.6(d).
"U.S. Person" shall mean a citizen, national or resident of
the United States of America, or an entity organized in or under the laws of the
United States of America.
"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).
<PAGE> 21
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"Wholly Owned Subsidiary" shall mean any Subsidiary of which
all shares of Voting Capital Stock (other than, in the case of a corporation,
directors' qualifying shares) are owned directly or indirectly by the Parent (as
defined in the definition of "Subsidiary").
SECTION 1.2. Terms Generally. (a) The definitions in Section
1.1 shall apply equally to both the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall, except where the context otherwise requires,
be deemed to be followed by the phrase "without limitation". All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require.
(b) Except as otherwise expressly provided herein, all terms
of an accounting nature shall be construed in accordance with GAAP as in effect
from time to time; provided, however, that, for purposes of determining
compliance with the covenants set forth in Sections 5.7 and 5.8 (such Sections
being referred to as the "Financial Covenants"), except as otherwise set forth
in the Financial Covenants and the definitions related thereto, such terms shall
be construed in accordance with GAAP as in effect on December 31, 1999.
(c) For the purposes of calculating Consolidated EBITDA and
Consolidated Interest Expense for any period (a "Test Period"), (i) if at any
time from the period (a "Pro Forma Period") commencing on the second day of such
Test Period and ending on the date which is ten days prior to the date of
delivery of the Compliance Certificate or Interim Certificate, as the case may
be, in respect of such Test Period (or, in the case of any pro forma calculation
made pursuant hereto in respect of a particular transaction, ending on the date
such transaction is consummated after giving effect thereto), Infinity or any
Subsidiary shall have made any Material Disposition, the Consolidated EBITDA for
such Test Period shall be reduced by an amount equal to the Consolidated EBITDA
(if positive) attributable to the Property which is the subject of such Material
Disposition for such Test Period or increased by an amount equal to the
Consolidated EBITDA (if negative) attributable thereto for such Test Period, and
Consolidated Interest Expense for such Test Period shall be reduced by an amount
equal to the Consolidated Interest Expense for such Test Period attributable to
any Indebtedness of Infinity or any Subsidiary repaid, repurchased, defeased or
otherwise discharged with respect to Infinity and its Subsidiaries in connection
with such Material Disposition (or, if the Capital Stock of any Subsidiary is
sold, the Consolidated Interest Expense for such Test Period directly
attributable to the Indebtedness of such Subsidiary to the extent Infinity and
its continuing Subsidiaries are no longer liable for such Indebtedness after
such Disposition); (ii) if during such Pro Forma Period Infinity or any
Subsidiary shall have made a Material Acquisition, Consolidated EBITDA and
Consolidated Interest Expense for such Test Period shall be calculated after
giving pro forma effect thereto (including the incurrence or assumption of any
Indebtedness in connection therewith) as if such Material Acquisition (and the
incurrence or assumption of any such Indebtedness) occurred on the first day of
such Test Period; and (iii) if during such Pro Forma Period any Person that
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
<PAGE> 22
18
bears a floating rate of interest and the incurrence or assumption thereof is
being given pro forma effect, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the last day of the relevant Pro Forma
Period had been the applicable rate for the entire relevant Test Period (taking
into account any interest rate protection agreement applicable to such
Indebtedness if such interest rate protection agreement has a remaining term in
excess of 12 months). Comparable adjustments shall be made in connection with
any determination of Consolidated EBITDA.
ARTICLE I.
THE CREDITS
SECTION 2.1. Commitments. Subject to the terms and conditions
hereof and relying upon the representations and warranties herein set forth,
each Lender agrees, severally and not jointly, to make Revolving Credit Loans to
Infinity or any Subsidiary Borrower, at any time and from time to time on and
after the Closing Date and until the earlier of (a) the Business Day immediately
preceding the Revolving Credit Maturity Date and (b) the termination of the
Commitment of such Lender, in an aggregate principal amount at any time
outstanding not to exceed such Lender's Commitment. Each Borrower may borrow,
prepay and reborrow Revolving Credit Loans on and after the Closing Date and
prior to the Revolving Credit Maturity Date, subject to the terms, conditions
and limitations set forth herein.
SECTION 2.2. Revolving Credit Loans; Competitive Loans. (a)
Each Revolving Credit Loan shall be made to the relevant Borrower by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made to the relevant Borrower by the Lender whose Competitive Bid
therefor is accepted, and in the amount so accepted, in accordance with the
procedures set forth in Section 2.3. The Revolving Credit Loans or Competitive
Loans shall be made in minimum amounts equal to (i) in the case of Competitive
Loans, $5,000,000 or an integral multiple of $1,000,000 in excess thereof, (ii)
in the case of Eurodollar Revolving Credit Loans, $50,000,000 or an integral
multiple of $5,000,000 in excess thereof, and (iii) in the case of ABR Revolving
Credit Loans, $25,000,000 or an integral multiple of $5,000,000 in excess
thereof (or an aggregate principal amount equal to the remaining balance of the
available Total Commitment).
(b) Each Lender shall make each Loan (other than a Swingline
Loan, as to which this Section 2.2 shall not apply) to be made by it on the
proposed date thereof by wire transfer of immediately available funds to the
Administrative Agent in New York, New York, not later than 12:00 noon, New York
City time (or, in connection with an ABR Loan to be made on the same day on
which a notice is submitted, 12:30 p.m., New York City time) and the
Administrative Agent shall by 3:00 p.m., New York City time, credit the amounts
so received to the general deposit account of the relevant Borrower with the
Administrative Agent.
SECTION 2.3. Competitive Bid Procedure. (a) In order to
request Competitive Bids, the relevant Borrower shall hand deliver or telecopy
to the Administrative Agent a duly completed Competitive Bid Request in the form
of Exhibit B-1, to be received by the Administrative Agent (i) in the case of a
Eurodollar Competitive Loan in Dollars, not later than 10:00 a.m., New York City
time, four Business Days before a proposed Competitive Loan, (ii) in the case of
a Eurodollar Competitive Loan in a Foreign Currency, not later than 10:00 a.m.,
New York City time, five Business Days before a proposed Competitive Loan ,
(iii) in the case of an Absolute Rate Loan in Dollars, not later than 10:00
a.m., New York City time, one Business Day before a proposed Competitive Loan
and (iv) in the case of an Absolute Rate Loan in a Foreign Currency, not later
than 10:00 a.m., New York City time, three Business
<PAGE> 23
19
Day before a proposed Competitive Loan. A Competitive Bid Request (A) that does
not conform substantially to the format of Exhibit B-1 may be rejected in the
Administrative Agent's discretion (exercised in good faith), and , (B) for a
Competitive Loan denominated in a Foreign Currency will be rejected by the
Administrative Agent if, after giving effect thereto, the Dollar equivalent of
the aggregate face amount of all Competitive Loans denominated in Foreign
Currencies then outstanding would exceed $150,000,000, as determined by the
Administrative Agent, and, in each case, the Administrative Agent shall promptly
notify the relevant Borrower of such rejection by telephone, confirmed by
telecopier. Such request shall in each case refer to this Agreement and specify
(w) whether the Competitive Loan then being requested is to be a Eurodollar
Competitive Loan or an Absolute Rate Loan, (x) the currency, (y) the date of
such Loan (which shall be a Business Day) and the aggregate principal amount
thereof which shall be in a minimum principal amount of the equivalent of
$5,000,000 and, in the case of a Competitive Bid for a Competitive Loan in
Dollars, in an integral multiple of $1,000,000, and (z) the Interest Period with
respect thereto (which may not end after the Revolving Credit Maturity Date).
Promptly after its receipt of a Competitive Bid Request that is not rejected as
aforesaid (and in any event by 5:00 p.m., New York City time, on the date of
such receipt if such receipt occurs by the time specified in the first sentence
of this paragraph), the Administrative Agent shall invite by telecopier (in the
form set forth in Exhibit B-2) the Lenders to bid, on the terms and conditions
of this Agreement, to make Competitive Loans pursuant to such Competitive Bid
Request.
(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the relevant Borrower responsive to a Competitive Bid
Request. Each Competitive Bid must be received by the Administrative Agent by
telecopier, in the form of Exhibit B-3, (i) in the case of a Eurodollar
Competitive Loan in Dollars, not later than 9:30 a.m., New York City time, three
Business Days before a proposed Competitive Loan, (ii) in the case of a
Eurodollar Competitive Loan in a Foreign Currency, not later than 9:30 a.m., New
York City time, four Business Days before a proposed Competitive Loan, (iii) in
the case of an Absolute Rate Loan in Dollars, not later than 9:30 a.m., New York
City time, on the day of a proposed Competitive Loan, and (iv) in the case of an
Absolute Rate Loan in a Foreign Currency, not later than 9:30 a.m., New York
City time, two days before a proposed Competitive Loan. Multiple Competitive
Bids will be accepted by the Administrative Agent. Competitive Bids that do not
conform substantially to the format of Exhibit B-3 may be rejected by the
Administrative Agent after conferring with, and upon the instruction of, the
relevant Borrower, and the Administrative Agent shall notify the Lender making
such nonconforming Competitive Bid of such rejection as soon as practicable.
Each Competitive Bid shall refer to this Agreement and specify (x) the principal
amount in the relevant currency (which shall be in a minimum principal amount of
the equivalent of $5,000,000 and, in the case of a Competitive Bid for a
Competitive Loan in Dollars, in an integral multiple of $1,000,000 and which may
equal the entire principal amount of the Competitive Loan requested by the
relevant Borrower) of the Competitive Loan or Loans that the applicable Lender
is willing to make to the relevant Borrower, (y) the Competitive Bid Rate or
Rates at which such Lender is prepared to make the Competitive Loan or Loans and
(z) the Interest Period and the last day thereof. A Competitive Bid submitted
pursuant to this paragraph (b) shall be irrevocable (subject to the satisfaction
of the conditions to borrowing set forth in Article IV).
(c) The Administrative Agent shall promptly (and in any event
by 10:15 a.m., New York City time, on the date on which such Competitive Bids
shall have been made) notify the relevant Borrower by telecopier of all the
Competitive Bids made, the Competitive Bid Rate and the principal amount in the
relevant currency of each Competitive Loan in respect of which a Competitive Bid
was made and the identity of the Lender that made each Competitive Bid. The
Administrative Agent shall send a copy of all Competitive Bids to the relevant
Borrower for its records as soon as practicable after completion of the bidding
process set forth in this Section 2.3.
<PAGE> 24
20
(d) The relevant Borrower may in its sole and absolute
discretion, subject only to the provisions of this paragraph (d), accept or
reject any Competitive Bid referred to in paragraph (c) above. The relevant
Borrower shall notify the Administrative Agent by telephone, confirmed by
telecopier in such form as may be agreed upon by such Borrower and the
Administrative Agent, whether and to what extent it has decided to accept or
reject any of or all the Competitive Bids referred to in paragraph (c) above,
(i) in the case of a Eurodollar Competitive Loan in Dollars, not later than
11:00 a.m., New York City time, three Business Days before a proposed
Competitive Loan, (ii) in the case of a Eurodollar Competitive Loan in a Foreign
Currency, not later than 11:00 a.m., New York City time, four Business Days
before a proposed Competitive Loan, (iii) in the case of an Absolute Rate Loan
in Dollars, not later than 11:00 a.m., New York City time, on the day of a
proposed Competitive Loan, and (iv) in the case of an Absolute Rate Loan in a
Foreign Currency, not later than 11:00 a.m., New York City time, on the day
before a proposed Competitive Loan; provided, however, that (A) the failure by
such Borrower to give such notice shall be deemed to be a rejection of all the
Competitive Bids referred to in paragraph (c) above, (B) such Borrower shall not
accept a Competitive Bid made at a particular Competitive Bid Rate if it has
decided to reject a Competitive Bid made at a lower Competitive Bid Rate, (C)
the aggregate amount of the Competitive Bids accepted by such Borrower shall not
exceed the principal amount specified in the Competitive Bid Request (but may be
less than that requested), (D) if such Borrower shall accept a Competitive Bid
or Competitive Bids made at a particular Competitive Bid Rate but the amount of
such Competitive Bid or Competitive Bids shall cause the total amount of
Competitive Bids to be accepted by it to exceed the amount specified in the
Competitive Bid Request, then such Borrower shall accept a portion of such
Competitive Bid or Competitive Bids in an amount equal to the amount specified
in the Competitive Bid Request less the amount of all other Competitive Bids
accepted with respect to such Competitive Bid Request, which acceptance, in the
case of multiple Competitive Bids at such Competitive Bid Rate, shall be made
pro rata in accordance with the amount of each such Competitive Bid at such
Competitive Bid Rate, and (E) except pursuant to clause (D) above no Competitive
Bid shall be accepted for a Competitive Loan unless such Competitive Loan is in
a minimum principal amount of the equivalent of $5,000,000 and, in the case of a
Competitive Bid for a Competitive Loan in Dollars, an integral amount multiple
of, in the case of a Competitive Bid for a Competitive Loan in Dollars,
$1,000,000; provided, further, however, that if a Competitive Loan must be in an
amount less than the equivalent of $5,000,000 because of the provisions of
clause (D) above, such Competitive Loan may be for a minimum of, in the case of
a Competitive Bid for a Competitive Loan in Dollars, $1,000,000 or any integral
multiple thereof, and in calculating the pro rata allocation of acceptances of
portions of multiple Competitive Bids at a particular Competitive Bid Rate
pursuant to clause (D) the amounts shall be rounded to integral multiples of the
equivalent of $1,000,000 (or, in the case of a Competitive Bid for a Competitive
Loan in a Foreign Currency, a multiple selected by the Administrative Agent) in
a manner which shall be in the discretion of such Borrower. A notice given by
any Borrower pursuant to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender whether or not its Competitive Bid has been accepted (and if so,
in what amount and at what Competitive Bid Rate) by telecopy sent by the
Administrative Agent, and each successful bidder will thereupon become bound,
subject to the other applicable conditions hereof, to make the Competitive Loan
in respect of which its Competitive Bid has been accepted.
(f) On the date the Competitive Loan is to be made, each
Lender participating therein shall (i) if such Competitive Loan is to be made in
Dollars, make available its share of such Competitive Loan in Dollars not later
than 2:00 p.m. New York City time, in immediately available funds, in New York
to the Administrative Agent as notified by the Administrative Agent by two
Business Days notice and (ii) if such Competitive Loan is to be made in a
Foreign Currency, make available its share of such Competitive Loan in such
Foreign Currency not later than 11:00 a.m. London time, in immediately
<PAGE> 25
21
available funds, in London to the Administrative Agent as notified by the
Administrative Agent by two Business Days notice.
(g) If the Lender which is the Administrative Agent shall
elect to submit a Competitive Bid in its capacity as a Lender, it shall submit
such Competitive Bid directly to the relevant Borrower one quarter of an hour
earlier than the latest time at which the other Lenders are required to submit
their Competitive Bids to the Administrative Agent pursuant to paragraph (b)
above.
(h) All notices required by this Section 2.3 shall be given in
accordance with Section 9.1.
(i) No Borrower shall have the right to prepay any Competitive
Loan without the consent of the affected Lender or Lenders.
SECTION 2.4. Revolving Credit Borrowing Procedure. In order to
request a Revolving Credit Loan, the relevant Borrower shall hand deliver or
telecopy to the Administrative Agent a Revolving Credit Borrowing Request in the
form of Exhibit B-4 (a) in the case of a Eurodollar Revolving Credit Loan, not
later than 11:00 a.m., New York City time, three Business Days before a proposed
borrowing and (b) in the case of an ABR Revolving Credit Loan, not later than
11:00 a.m., New York City time, on the day of a proposed borrowing. Such notice
shall be irrevocable and shall in each case specify (i) whether the Revolving
Credit Loan then being requested is to be a Eurodollar Revolving Credit Loan or
an ABR Revolving Credit Loan, (ii) the date of such Revolving Credit Loan (which
shall be a Business Day) and the amount thereof; and (iii) in the case of a
Eurodollar Revolving Credit Loan, the Interest Period with respect thereto. The
Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.4 and of each Lender's portion of the requested Loan.
SECTION 2.5. Repayment of Loans. Each Borrower shall repay all
outstanding Revolving Credit Loans and ABR Swingline Loans made to it, in each
case on the Revolving Credit Maturity Date (or such earlier date on which the
Commitments shall terminate in accordance herewith). Each Borrower shall repay
Quoted Swingline Loans and Competitive Loans made to it, in each case on the
Maturity Date applicable thereto. Each Loan shall bear interest from and
including the date thereof on the outstanding principal balance thereof as set
forth in Section 2.10.
SECTION 2.6. Swingline Loans. (a) Subject to the terms and
conditions hereof and relying upon the representations and warranties herein set
forth, each Swingline Lender agrees, severally and not jointly, at any time and
from time to time on and after the Closing Date and until the earlier of the
Business Day immediately preceding the Revolving Credit Maturity Date and the
termination of the Swingline Commitment of such Swingline Lender, (i) to make
available to any Swingline Borrower Swingline Loans ("Quoted Swingline Loans")
on the basis of quoted interest rates (each, a "Quoted Swingline Rate")
furnished by such Swingline Lender from time to time in its discretion to such
Swingline Borrower (through the Administrative Agent) and accepted by such
Swingline Borrower in its discretion and (ii) to make Swingline Loans ("ABR
Swingline Loans") to any Swingline Borrower bearing interest at a rate equal to
the Alternate Base Rate in an aggregate principal amount (in the case of this
clause (ii)) not to exceed such Swingline Lender's Swingline Commitment. The
aggregate outstanding principal amount of the Quoted Swingline Loans of any
Swingline Lender, when added to the aggregate outstanding principal amount of
the ABR Swingline Loans of such Swingline Lender, may exceed such Swingline
Lender's Swingline Commitment; provided, that in no event shall the aggregate
outstanding principal amount of the Swingline Loans exceed the aggregate
Swingline Commitments then in effect. Each Quoted Swingline Loan shall be made
only by the Swingline Lender furnishing the relevant Quoted Swingline Rate. Each
ABR Swingline Loan shall be made by the Swingline Lenders
<PAGE> 26
22
ratably in accordance with their respective Swingline Percentages. The Swingline
Loans shall be made in a minimum aggregate principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof (or an aggregate principal
amount equal to the remaining balance of the available Swingline Commitments).
Each Swingline Lender shall make the portion of each Swingline Loan to be made
by it available to any Swingline Borrower by means of a credit to the general
deposit account of such Swingline Borrower with the Administrative Agent or a
wire transfer, at the expense of such Swingline Borrower, to an account
designated in writing by such Swingline Borrower, in each case by 3:30 p.m., New
York City time, on the date such Swingline Loan is requested to be made pursuant
to paragraph (b) below, in immediately available funds. Each Swingline Borrower
may borrow, prepay and reborrow Swingline Loans on or after the Closing Date and
prior to the Revolving Credit Maturity Date (or such earlier date on which the
Commitments shall terminate in accordance herewith) on the terms and subject to
the conditions and limitations set forth herein.
(b) The relevant Swingline Borrower shall give the
Administrative Agent telephonic, written or telecopy notice substantially in the
form of Exhibit B-5 (in the case of telephonic notice, such notice shall be
promptly confirmed by telecopy) no later than 2:30 p.m., New York City time (or,
in the case of a proposed Quoted Swingline Loan, 12:00 noon, New York City
time), on the day of a proposed Swingline Loan. Such notice shall be delivered
on a Business Day, shall be irrevocable (subject, in the case of Quoted
Swingline Loans, to receipt by the relevant Swingline Borrower of Quoted
Swingline Rates acceptable to it) and shall refer to this Agreement and shall
specify the requested date (which shall be a Business Day) and amount of such
Swingline Loan. The Administrative Agent shall promptly advise the Swingline
Lenders of any notice received from any Swingline Borrower pursuant to this
paragraph (b). In the event that a Swingline Borrower accepts a Quoted Swingline
Rate in respect of a proposed Quoted Swingline Loan, it shall notify the
Administrative Agent (which shall in turn notify the relevant Swingline Lender)
of such acceptance no later than 2:30 p.m., New York City time, on the relevant
borrowing date.
(c) In the event that any ABR Swingline Loan shall be
outstanding for more than five Business Days, the Administrative Agent shall, on
behalf of the relevant Swingline Borrower (which hereby irrevocably directs and
authorizes the Administrative Agent to act on its behalf), request each Lender,
including the Swingline Lenders, to make an ABR Revolving Credit Loan in an
amount equal to such Lender's Revolving Credit Percentage of the principal
amount of such ABR Swingline Loan. Each Lender will make the proceeds of its
Revolving Credit Loan available to the Administrative Agent for the account of
the Swingline Lenders at the office of the Administrative Agent prior to 12:00
Noon, New York City time, in funds immediately available on the Business Day
next succeeding the date such notice is given. The proceeds of such Revolving
Credit Loans shall be immediately applied to repay the ABR Swingline Loans.
(d) If, for any reason, Revolving Credit Loans may not be (as
determined by the Administrative Agent in its sole discretion), or are not, made
pursuant to Section 2.6(c) to repay ABR Swingline Loans as required by said
Section, then, effective on the date such Revolving Credit Loans would otherwise
have been made, the Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon New York City time on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of such unrefunded ABR Swingline Loans (the "Unrefunded
Swingline Loans"), and each Lender severally, unconditionally and irrevocably
agrees that it shall purchase an undivided participating interest in such ABR
Swingline Loans in an amount equal to the amount of the Revolving Credit Loan
which otherwise would have been made by such Lender pursuant to Section 2.6(c),
which purchase shall be funded by the time such Revolving Credit Loan would have
been required to be made pursuant to Section 2.6(c). In the event that the
Lenders purchase undivided participating interests pursuant to the first
sentence of this paragraph (d),
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each Lender shall immediately transfer to the Administrative Agent, for the
account of the Swingline Lenders, in immediately available funds, the amount of
its participation. Any Lender holding a participation in an Unrefunded Swingline
Loan may exercise any and all rights of banker's lien, setoff or counterclaim
with respect to any and all moneys owing by the relevant Swingline Borrower to
such Lender by reason thereof as fully as if such Lender had made a Loan
directly to such Swingline Borrower in the amount of such participation.
(e) Whenever, at any time after any Swingline Lender has
received from any Lender such Lender's participating interest in an ABR
Swingline Loan, such Swingline Lender receives any payment on account thereof,
such Swingline Lender will promptly distribute to such Lender its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's participating
interest was outstanding and funded); provided, however, that in the event that
such payment received by such Swingline Lender is required to be returned, such
Lender will return to such Swingline Lender any portion thereof previously
distributed by such Swingline Lender to it.
(f) Notwithstanding anything to the contrary in this
Agreement, each Lender's obligation to make the Revolving Credit Loans referred
to in Section 2.6(c) and to purchase and fund participating interests pursuant
to Section 2.6(d) shall be absolute and unconditional and shall not be affected
by any circumstance, including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Lender or any
Swingline Borrower may have against any Swingline Lender, any Swingline Borrower
or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default or an Event of Default or the failure to satisfy any of
the conditions specified in Article IV; (iii) any adverse change in the
condition (financial or otherwise) of Infinity or any of its Subsidiaries; (iv)
any breach of this Agreement by any Borrower or any Lender; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
(g) Upon written or telecopy notice to the Swingline Lenders
and to the Administrative Agent, Infinity may at any time terminate, from time
to time in part reduce, or from time to time (with the approval of the relevant
Swingline Lender) increase, the Swingline Commitment of any Swingline Lender. At
any time when there shall be fewer than ten Swingline Lenders, Infinity may
appoint from among the Lenders a new Swingline Lender, subject to the prior
consent of such new Swingline Lender and prior notice to the Administrative
Agent, so long as at no time shall there be more than ten Swingline Lenders.
Notwithstanding anything to the contrary in this Agreement, (i) if any ABR
Swingline Loans shall be outstanding at the time of any termination, reduction,
increase or appointment pursuant to the preceding two sentences, the Swingline
Borrowers shall on the date thereof prepay or borrow ABR Swingline Loans to the
extent necessary to ensure that at all times the outstanding ABR Swingline Loans
held by the Swingline Lenders shall be pro rata according to the respective
Swingline Commitments of the Swingline Lenders and (ii) in no event may the
aggregate Swingline Commitments exceed $300,000,000. On the date of any
termination or reduction of the Swingline Commitments pursuant to this paragraph
(g), the Swingline Borrowers shall pay or prepay so much of the Swingline Loans
as shall be necessary in order that, after giving effect to such termination or
reduction, (i) the aggregate outstanding principal amount of the ABR Swingline
Loans of any Swingline Lender will not exceed the Swingline Commitment of such
Swingline Lender and (ii) the aggregate outstanding principal amount of all
Swingline Loans will not exceed the aggregate Swingline Commitments.
(h) Each Swingline Borrower may prepay any Swingline Loan in
whole or in part at any time without premium or penalty; provided, that such
Swingline Borrower shall have given the Administrative Agent written or telecopy
notice (or telephone notice promptly confirmed in writing or by telecopy) of
such prepayment not later than 10:30 a.m., New York City time, on the Business
Day
<PAGE> 28
24
designated by such Swingline Borrower for such prepayment; and provided,
further, that each partial payment shall be in an amount that is an integral
multiple of $1,000,000. Each notice of prepayment under this paragraph (h) shall
specify the prepayment date and the principal amount of each Swingline Loan (or
portion thereof) to be prepaid, shall be irrevocable and shall commit such
Swingline Borrower to prepay such Swingline Loan (or portion thereof) by the
amount stated therein on the date stated therein. All prepayments under this
paragraph (h) shall be accompanied by accrued interest on the principal amount
being prepaid to the date of payment. Each payment of principal of or interest
on ABR Swingline Loans shall be allocated, as between the Swingline Lenders, pro
rata in accordance with their respective Swingline Percentages.
SECTION 2.7. Letters of Credit. (a) Subject to the terms and
conditions hereof and relying upon the representations and warranties herein set
forth, each Issuing Lender agrees, at any time and from time to time on or after
the Closing Date until the earlier of (i) the fifth Business Day preceding the
Revolving Credit Maturity Date and (ii) the termination of the Commitments in
accordance with the terms hereof, to issue and deliver or to extend the expiry
of Letters of Credit for the account of Infinity in an aggregate outstanding
undrawn amount which does not exceed the maximum amount specified in the
applicable Issuing Lender Agreement; provided, that in no event shall the
Aggregate LC Exposure exceed $750,000,000 at any time. Each Letter of Credit (i)
shall be in a form approved in writing by Infinity and the applicable Issuing
Lender and (ii) shall permit drawings upon the presentation of such documents as
shall be specified by Infinity in the applicable notice delivered pursuant to
paragraph (c) below. The Lenders agree that, subject to compliance with the
conditions precedent set forth in Section 4.3, any Designated Letter of Credit
may be designated as a Letter of Credit hereunder from time to time on or after
the Closing Date pursuant to the procedures specified in the definition of
"Designated Letters of Credit".
(b) Each Letter of Credit shall by its terms expire not later
than the fifth Business Day preceding the Revolving Credit Maturity Date. Any
Letter of Credit may provide for the renewal thereof for additional periods
(which shall in no event extend beyond the date referred to in the preceding
sentence). Each Letter of Credit shall by its terms provide for payment of
drawings in Dollars or in a Foreign Currency; provided, that a Letter of Credit
denominated in a Foreign Currency may not be issued if, after giving effect
thereto, the Dollar equivalent (calculated on the basis of the applicable
Foreign Exchange Rate) of the aggregate face amount of all Letters of Credit
denominated in Foreign Currencies then outstanding would exceed $150,000,000, as
determined by the Administrative Agent.
(c) Infinity shall give the applicable Issuing Lender and the
Administrative Agent written or telecopy notice not later than 10:00 a.m., New
York City time, five Business Days (or such shorter period as shall be
acceptable to such Issuing Lender) prior to any proposed issuance of a Letter of
Credit. Each such notice shall refer to this Agreement and shall specify (i) the
date on which such Letter of Credit is to be issued (which shall be a Business
Day) and the face amount of such Letter of Credit, (ii) the name and address of
the beneficiary, (iii) whether such Letter of Credit is a Financial Letter of
Credit or a Non-Financial Letter of Credit (subject to confirmation of such
status by the Administrative Agent), (iv) whether such Letter of Credit shall
permit a single drawing or multiple drawings, (v) the form of the documents
required to be presented at the time of any drawing (together with the exact
wording of such documents or copies thereof), (vi) the expiry date of such
Letter of Credit (which shall conform to the provisions of paragraph (b) above)
and (vii) if such Letter of Credit is to be in a Foreign Currency, the relevant
Foreign Currency. The Administrative Agent shall give to each Lender prompt
written or telecopy advice of the issuance of any Letter of Credit. Each
determination by the Administrative Agent as to whether or not a Letter of
Credit constitutes a Financial Letter of Credit shall be conclusive and binding
upon Infinity and the Lenders.
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(d) By the issuance of a Letter of Credit and without any
further action on the part of the applicable Issuing Lender or the Lenders in
respect thereof, the applicable Issuing Lender hereby grants to each Lender, and
each Lender hereby acquires from such Issuing Lender, a participation in such
Letter of Credit equal to such Lender's Revolving Credit Percentage at the time
of any drawing thereunder of the face amount of such Letter of Credit, effective
upon the issuance of such Letter of Credit. In addition, the applicable Issuing
Lender hereby grants to each Lender, and each Lender hereby acquires from such
Issuing Lender, a participation in each Designated Letter of Credit equal to
such Lender's Revolving Credit Percentage at the time of any drawing thereunder
of the face amount of such Designated Letter of Credit, effective on the date
such Designated Letter of Credit is designated as a Letter of Credit hereunder.
In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of each Issuing Lender, in accordance with paragraph (f) below, such
Lender's Revolving Credit Percentage of each unreimbursed LC Disbursement made
by such Issuing Lender; provided, however, that the Lenders shall not be
obligated to make any such payment with respect to any payment or disbursement
made under any Letter of Credit to the extent resulting from the gross
negligence or wilful misconduct of such Issuing Lender.
(e) Each Lender acknowledges and agrees that its acquisition
of participations pursuant to paragraph (d) above in respect of Letters of
Credit shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender or Infinity may have
against any Issuing Lender, Infinity or any other Person, for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the conditions specified in Article IV;
(iii) any adverse change in the condition (financial or otherwise) of Infinity
or any of its Subsidiaries; (iv) any breach of this Agreement by Infinity or any
Lender; or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
(f) On the date on which it shall have ascertained that any
documents presented under a Letter of Credit appear to be in conformity with the
terms and conditions of such Letter of Credit, the applicable Issuing Lender
shall give written or telecopy notice to Infinity and the Administrative Agent
of the amount of the drawing and the date on which payment thereon has been or
will be made. If the applicable Issuing Lender shall not have received from
Infinity the payment required pursuant to paragraph (g) below by 12:00 noon, New
York City time, two Business Days after the date on which payment of a draft
presented under any Letter of Credit has been made, such Issuing Lender shall so
notify the Administrative Agent, which shall in turn promptly notify each
Lender, specifying in the notice to each Lender such Lender's Revolving Credit
Percentage of such LC Disbursement. Each Lender shall pay to the Administrative
Agent, not later than 2:00 p.m., New York City time, on such second Business
Day, such Lender's Revolving Credit Percentage of such LC Disbursement (which
obligation shall be expressed in Dollars only), which the Administrative Agent
shall promptly pay to the applicable Issuing Lender. The Administrative Agent
will promptly remit to each Lender such Lender's Revolving Credit Percentage of
any amounts subsequently received by the Administrative Agent from Infinity in
respect of such LC Disbursement; provided, that (i) amounts so received for the
account of any Lender prior to payment by such Lender of amounts required to be
paid by it hereunder in respect of any LC Disbursement and (ii) amounts
representing interest at the rate provided in paragraph (g) below on any LC
Disbursement for the period prior to the payment by such Lender of such amounts
shall in each case be remitted to the applicable Issuing Lender.
(g) If an Issuing Lender shall pay any draft presented under a
Letter of Credit, Infinity shall pay to such Issuing Lender an amount equal to
the amount of such draft before 12:00 noon, New York City time, on the second
Business Day immediately following the date of payment of such draft,
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together with interest (if any) on such amount at a rate per annum equal to the
interest rate in effect for ABR Loans (or, in the case of Foreign
Currency-denominated Letters of Credit, the rate which would reasonably and
customarily be charged by such Issuing Lender on outstanding loans denominated
in the relevant Foreign Currency) from (and including) the date of payment of
such draft to (but excluding) the date on which either Infinity shall have
repaid, or the Lenders shall have refunded, such draft in full (which interest
shall be payable on such second Business Day and from time to time thereafter on
demand until either Infinity shall have repaid, or the Lenders shall have
refunded, such draft in full). In the event that such drawing shall be refunded
by the Lenders as provided in Section 2.7(f), Infinity shall pay to the
Administrative Agent, for the account of the Lenders, quarterly on the last day
of each March, June, September and December, interest on the amount so refunded
at a rate per annum equal to the interest rate in effect for ABR Loans from (and
including) the date of such refunding to (but excluding) the date on which the
amount so refunded by the Lenders shall have been paid in full in Dollars by
Infinity. Each payment made to an Issuing Lender by Infinity pursuant to this
paragraph shall be made at such Issuing Lender's address for notices specified
herein in lawful money of (x) the United States of America (in the case of
payments made on Dollar-denominated Letters of Credit) or (y) the applicable
foreign jurisdiction (in the case of payments on Foreign Currency-denominated
Letters of Credit) and in immediately available funds. The obligation of
Infinity to pay the amounts referred to above in this paragraph (g) (and the
obligations of the Lenders under paragraphs (d) and (f) above) shall be
absolute, unconditional and irrevocable and shall be satisfied strictly in
accordance with their terms irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Issuing Lender Agreement or of the obligations of
Infinity under this Agreement or any Issuing Lender Agreement;
(ii) the existence of any claim, setoff, defense or other
right which Infinity or any other Person may at any time have against
the beneficiary under any Letter of Credit, the Agents, any Issuing
Lender or any Lender (other than the defense of payment in accordance
with the terms of this Agreement or a defense based on the gross
negligence or wilful misconduct of the applicable Issuing Lender) or
any other Person in connection with this Agreement or any other
transaction;
(iii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect;
provided, that payment by the applicable Issuing Lender under such
Letter of Credit against presentation of such draft or document shall
not have constituted gross negligence or wilful misconduct;
(iv) payment by the applicable Issuing Lender under a Letter
of Credit against presentation of a draft or other document which does
not comply in any immaterial respect with the terms of such Letter of
Credit; provided, that such payment shall not have constituted gross
negligence or wilful misconduct; or
(v) any other circumstance or event whatsoever, whether or not
similar to any of the foregoing; provided, that such other circumstance
or event shall not have been the result of gross negligence or wilful
misconduct of the applicable Issuing Lender.
It is understood that in making any payment under a Letter of
Credit (x) such Issuing Lender's exclusive reliance on the documents presented
to it under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereof equals the
amount of such draft and
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whether or not any document presented pursuant to such Letter of Credit proves
to be forged, fraudulent or invalid in any respect, if such document on its face
appears to be in order, and whether or not any other statement or any other
document presented pursuant to such Letter of Credit proves to be forged or
invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever, and (y) any noncompliance in any immaterial respect of the
documents presented under a Letter of Credit with the terms thereof shall, in
either case, not, in and of itself, be deemed wilful misconduct or gross
negligence of such Issuing Lender.
(h) (i) Notwithstanding anything to the contrary contained in
this Agreement, for purposes of calculating any LC Fee or Commitment Fee payable
in respect of any Business Day, the Administrative Agent shall convert the
amount available to be drawn under any Letter of Credit denominated in Foreign
Currency into an amount of Dollars based upon the relevant Foreign Exchange Rate
in effect for such day. If on any date the Administrative Agent shall notify
Infinity that, by virtue of any change in the Foreign Exchange Rate of any
Foreign Currency in which a Letter of Credit is denominated, the Total Facility
Exposure shall exceed the Total Commitment then in effect, then, within three
Business Days after the date of such notice, Infinity shall prepay the Revolving
Credit Loans and/or the Swingline Loans to the extent necessary to eliminate
such excess. Each Issuing Lender which has issued a Letter of Credit denominated
in a Foreign Currency agrees to notify the Administrative Agent of the average
daily outstanding amount thereof for any period in respect of which LC Fees or
Commitment Fees are payable and, upon request by the Administrative Agent, for
any other date or period. For all purposes of this Agreement, determinations by
the Administrative Agent of the Dollar equivalent of any amount expressed in a
Foreign Currency shall be made on the basis of Foreign Exchange Rates reset
monthly (or on such other periodic basis as shall be selected by the
Administrative Agent in its sole discretion) and shall in each case be
conclusive absent manifest error.
(ii) Notwithstanding anything to the contrary contained in
this Section 2.7, prior to demanding any reimbursement from the Lenders pursuant
to Section 2.7(f) in respect of any Letter of Credit denominated in a Foreign
Currency, the relevant Issuing Lender shall convert Infinity's obligation under
Section 2.7(g) to reimburse such Issuing Lender in such Foreign Currency into an
obligation to reimburse such Issuing Lender (and, in turn, the Lenders) in
Dollars. The amount of any such converted obligation shall be computed based
upon the relevant Foreign Exchange Rate (as quoted by the Administrative Agent
to such Issuing Lender) in effect for the day on which such conversion occurs.
SECTION 2.8. Conversion and Continuation Options. (a) The
relevant Borrower may elect from time to time to convert Eurodollar Revolving
Credit Loans (or, subject to Section 2.10(f), a portion thereof) to ABR
Revolving Credit Loans on the last day of an Interest Period with respect
thereto by giving the Administrative Agent prior irrevocable notice of such
election. The relevant Borrower may elect from time to time to convert ABR
Revolving Credit Loans (subject to Section 2.10(f)) to Eurodollar Revolving
Credit Loans by giving the Administrative Agent at least three Business Days'
prior irrevocable notice of such election. Any such notice of conversion to
Eurodollar Revolving Credit Loans shall specify the length of the initial
Interest Period therefor. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Lender thereof. All or any part of outstanding
Eurodollar Revolving Credit Loans and ABR Revolving Credit Loans may be
converted as provided herein; provided, that no Revolving Credit Loan may be
converted into a Eurodollar Revolving Credit Loan when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Required
Lenders have determined in its or their sole discretion not to permit such a
conversion.
(b) Any Eurodollar Revolving Credit Loans (or, subject to
Section 2.10(f), a portion thereof) may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the relevant
Borrower giving irrevocable notice to the Administrative Agent, not less than
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three Business Days prior to the last day of the then current Interest Period
with respect thereto, of the length of the next Interest Period to be applicable
to such Revolving Credit Loans; provided, that no Eurodollar Revolving Credit
Loan may be continued as such when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit such a continuation;
and provided, further, that if the relevant Borrower shall fail to give any
required notice as described above in this paragraph or if such continuation is
not permitted pursuant to the preceding proviso such Eurodollar Revolving Credit
Loans shall be automatically converted to ABR Revolving Credit Loans on the last
day of such then expiring Interest Period. Upon receipt of any notice from a
Borrower pursuant to this Section 2.8(b), the Administrative Agent shall
promptly notify each Lender thereof.
SECTION 2.9. Fees. (a) Infinity agrees to pay to the
Administrative Agent for the account of each Lender a Commitment Fee for the
period from and including the Closing Date to the Revolving Credit Maturity Date
(or such earlier date on which the Commitments shall terminate in accordance
herewith), computed at a per annum rate equal to the Applicable Commitment Fee
Rate on the average daily Commitment Fee Calculation Amount in respect of such
Lender during the period for which payment is made. All Commitment Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360 days
and shall be payable quarterly in arrears on the last day of each March, June,
September and December, on the Revolving Credit Maturity Date or such earlier
date on which the Commitments shall be terminated, commencing on the first of
such dates to occur after the Closing Date.
(b) Infinity agrees to pay each Lender, through the
Administrative Agent, on the last day of each March, June, September and
December and on the Revolving Credit Maturity Date or the date on which the
Commitment of such Lender shall be terminated as provided herein and all Letters
of Credit issued hereunder shall have expired, a letter of credit fee (an "LC
Fee") computed at a per annum rate equal to the Applicable LC Fee Rate on such
Lender's Revolving Credit Percentage of the average daily undrawn amount of the
Financial Letters of Credit or Non-Financial Letters of Credit, as the case may
be, outstanding during the preceding quarter (or shorter period commencing with
the Closing Date or ending with the Revolving Credit Maturity Date or the date
on which the Commitment of such Lender shall have been terminated and all
Letters of Credit issued hereunder shall have expired). All LC Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days.
(c) Infinity agrees to pay to the Administrative Agent, for
its own account, the administrative agent's fees ("Administrative Agent's Fees")
provided for in the Administrative Agent Fee Letter at the times provided
therein.
(d) Infinity agrees to pay to each Issuing Lender, through the
Administrative Agent, for its own account, the applicable Issuing Lender Fees ,
including, without limitation, a fronting fee at a rate to be determined by
Infinity and the relevant Issuing Lender payable on the last day of each March,
June, September and December to such Issuing Lender for the period from and
including the date of issuance of such Letter of Credit to, but not including,
the termination date of such Letter of Credit.
(e) Infinity agrees to pay to each Lender, through the
Administrative Agent, on each Interest Payment Date for ABR Loans, a utilization
fee (a "Utilization Fee") at a rate per annum equal to the Applicable
Utilization Fee Rate for each Excess Utilization Day during the period covered
by such Interest Payment Date on the Facility Exposure of such Lender on such
Excess Utilization Day. All Utilization Fees shall be computed on the basis of
the actual number of days elapsed in a year of 360 days and shall be payable in
arrears.
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(f) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the relevant Lenders or to the Issuing Lenders. Once paid,
none of the Fees shall be refundable under any circumstances (other than
corrections of errors in payment).
SECTION 2.10. Interest on Loans; Eurodollar Tranches; Etc. (a)
Subject to the provisions of Section 2.11, Eurodollar Loans shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to (i) in the case of each Eurodollar Revolving
Credit Loan, the Eurodollar Rate for the Interest Period in effect for such Loan
plus the Applicable Eurodollar Margin and (ii) in the case of each Eurodollar
Competitive Loan, the Eurodollar Rate for the Interest Period in effect for such
Loan plus the Margin offered by the Lender making such Loan and accepted by the
relevant Borrower pursuant to Section 2.3. The Eurodollar Rate for each Interest
Period shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error. The Administrative Agent shall
promptly advise the relevant Borrower and each Lender of such determination.
(b) Subject to the provisions of Section 2.11, ABR Loans shall
bear interest (computed on the basis of the actual number of days elapsed over a
year of 365 or 366 days, as the case may be, when determined by reference to the
Prime Rate and over a year of 360 days at all other times) at a rate per annum
equal to the Alternate Base Rate. The Alternate Base Rate shall be determined by
the Administrative Agent, and such determination shall be conclusive absent
manifest error.
(c) Subject to the provisions of Section 2.11, Quoted
Swingline Loans shall bear interest (computed on the basis of the actual number
of days elapsed over a year of 360 days) at a rate per annum equal to the
relevant Quoted Swingline Rate.
(d) Subject to the provisions of Section 2.11, each Absolute
Rate Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed rate
of interest offered by the Lender making such Loan and accepted by the relevant
Borrower pursuant to Section 2.3.
(e) Interest on each Loan shall be payable on each applicable
Interest Payment Date.
(f) Notwithstanding anything to the contrary in this
Agreement, all borrowings, conversions, continuations, repayments and
prepayments of Eurodollar Revolving Credit Loans hereunder and all selections of
Interest Periods hereunder in respect of Eurodollar Revolving Credit Loans shall
be in such amounts and shall be made pursuant to such elections so that, after
giving effect thereto, the aggregate principal amount of the Eurodollar
Revolving Credit Loans comprising each Eurodollar Tranche shall be equal to
$50,000,000 or a whole multiple of $5,000,000 in excess thereof. Unless
otherwise agreed by the Administrative Agent, in no event shall there be more
than 25 Eurodollar Tranches outstanding at any time.
(g) If no election as to the Type of Revolving Credit Loan is
specified in any notice of borrowing with respect thereto, then the requested
Loan shall be an ABR Loan. If no Interest Period with respect to a Eurodollar
Revolving Credit Loan is specified in any notice of borrowing, conversion or
continuation, then the relevant Borrower shall be deemed to have selected an
Interest Period of one month's duration. The Interest Period with respect to a
Eurodollar Competitive Loan shall in no case be less than one month's duration.
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SECTION 2.11. Default Interest. (a) If all or a portion of the principal amount
of any Loan shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), all outstanding Loans (whether or not overdue) shall
bear interest at a rate per annum which is equal to the rate that would
otherwise be applicable thereto pursuant to the provisions of Section 2.10 plus
2% and (b) if all or a portion of any LC Disbursement, any interest payable on
any Loan or LC Disbursement or any Fee or other amount payable hereunder shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the rate otherwise applicable to ABR Loans pursuant to Section 2.10(b) plus 2%,
in each case, with respect to clauses (a) and (b) above, from the date of such
non-payment until such amount is paid in full (as well after as before
judgment).
SECTION 2.12. Alternate Rate of Interest. In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurodollar Loan (i) the Administrative Agent shall
have determined (which determination shall be conclusive and binding upon each
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period, or (ii) the Required Lenders shall have determined and
shall have notified the Administrative Agent that the Eurodollar Rate determined
or to be determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such Lenders) of
making or maintaining Eurodollar Loans during such Interest Period, the
Administrative Agent shall, as soon as practicable thereafter, give written or
telecopy notice of such determination to the Borrowers and the Lenders. In the
event of any such determination, until the Administrative Agent shall have
advised the Borrowers and the Lenders that the circumstances giving rise to such
notice no longer exist, (i) any request by a Borrower for a Eurodollar
Competitive Loan pursuant to Section 2.3 to be made after such determination
shall be of no force and effect and shall be denied by the Administrative Agent,
(ii) any request by a Borrower for a Eurodollar Revolving Credit Loan pursuant
to Section 2.4 to be made after such determination shall be deemed to be a
request for an ABR Loan and (iii) any request by a Borrower for conversion into
or a continuation of a Eurodollar Revolving Credit Loan pursuant to Section 2.8
to be made after such determination shall have no force and effect (in the case
of a requested conversion) or shall be deemed to be a request for a conversion
into an ABR Loan (in the case of a requested continuation). Also, in the event
of any such determination, the relevant Borrower shall be entitled, in its sole
discretion, if the requested Loan has not been made, to cancel its acceptance of
the Competitive Bids or to cancel its Competitive Bid Request relating thereto.
Each determination by the Administrative Agent or the Required Lenders hereunder
shall be conclusive absent manifest error.
SECTION 2.13. Termination, Reduction and Increase of
Commitments. (a) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, Infinity may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Commitments; provided, however, that (i) each partial reduction of the
Commitments shall be in a minimum principal amount of $10,000,000 and in
integral multiples of $1,000,000 in excess thereof and (ii) no such termination
or reduction shall be made if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, (x) the Outstanding
Revolving Extensions of Credit of any Lender would exceed such Lender's
Commitment then in effect or (y) the Total Facility Exposure would exceed the
Total Commitment then in effect. The Administrative Agent shall promptly advise
the Lenders of any notice given pursuant to this Section 2.13(a).
(b) Except as otherwise provided in Section 2.21, each
reduction in the Commitments hereunder shall be made ratably among the Lenders
in accordance with their respective Commitments. Infinity agrees to pay to the
Administrative Agent for the account of the Lenders, on the date of
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termination or reduction of the Commitments, the Commitment Fees on the amount
of the Commitments so terminated or reduced accrued through the date of such
termination or reduction.
(c) Infinity shall have the right at any time and from time to
time to increase the Total Commitments to an aggregate amount, when added to the
aggregate amount of Total Commitments (as defined under the 364-Day Credit
Agreement) under the 364-Day Credit Agreement, not to exceed $3,500,000,000 (i)
by requesting that one or more banks or other financial institutions not a party
to this Agreement become a Lender hereunder or (ii) by requesting that any
Lender already party to this Agreement increase the amount of such Lender's
Commitment; provided, that the addition of any bank or financial institution
pursuant to clause (i) above shall be subject to the consent of the
Administrative Agent (which consent shall not be unreasonably withheld);
provided further, the Commitment of any bank or other financial institution
pursuant to clause (i) above, shall be in an aggregate principal amount at least
equal to $10,000,000; provided further, the amount of the increase of any
Lender's Commitment pursuant to clause (ii) above when added to the amount of
such Lender's Commitment before the increase, shall be in an aggregate principal
amount at least equal to $10,000,000.
(d) Any additional bank, financial institution or other entity
which elects to become a party to this Agreement and obtain a Commitment
pursuant to clause (c) of this Section 2.13 above shall execute a New Lender
Supplement (each, a "New Lender Supplement") with Infinity and the
Administrative Agent, substantially in the form of Exhibit G, whereupon such
bank, financial institution or other entity (herein called a "New Lender") shall
become a Lender for all purposes and to the same extent as if originally a party
hereto and shall be bound by and entitled to the benefits of this Agreement, and
Schedule 1.1 shall be deemed to be amended to add the name and Commitment of
such New Lender.
(e) Any increase in the Total Commitment pursuant to clause
(c)(ii) of this Section 2.13 shall be effective only upon the execution and
delivery to Infinity and the Administrative Agent of a commitment increase
letter in substantially the form of Exhibit H hereto (a "Commitment Increase
Letter"), which Commitment Increase Letter shall be delivered to the
Administrative Agent not less than five Business Days prior to the Commitment
Increase Date and shall specify (i) the amount of the Commitment of any bank or
financial institution not a party to this agreement which is becoming a Lender
or the amount of any increase in the Commitment of any Lender and (ii) the date
such increase is to become effective (the "Commitment Increase Date").
(f) Any increase in the Total Commitment pursuant to this
Section 2.13 shall not be effective unless:
(i) no Default or Event of Default shall have occurred and be
continuing on the Commitment Increase Date;
(ii) each of the representations and warranties made by
Infinity and the Subsidiary Borrowers in Article III, or in any
certificate delivered pursuant hereto, shall be true and correct in all
material respects on the Commitment Increase Date with the same effect
as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date in
which case such representations and warranties shall be true and
correct in all material respects as of such earlier date;
(iii) the Administrative Agent shall have received each of (A)
a certificate of the corporate secretary or assistant secretary of the
Borrowers as to the taking of any corporate action necessary in
connection with such increase and (B) an opinion or opinions of general
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counsel to the Borrowers as to their corporate power and authority to
borrow hereunder after giving effect to such increase and such other
matters relating thereto as the Administrative Agent and its counsel
may reasonably request.
Each notice requesting an increase in the Total Commitments pursuant to this
Section 2.13 shall constitute a certification to the effect set forth in clauses
(i) and (ii) of this Section 2.13(e).
(g) No Lender shall at any time be required to agree to a
request of Infinity to increase its Commitment or obligations hereunder.
SECTION 2.14. Optional Prepayments of Revolving Credit Loans.
The relevant Borrower may at any time and from time to time prepay the Revolving
Credit Loans, in whole or in part, without premium or penalty, upon giving
irrevocable written or telecopy notice (or telephone notice promptly confirmed
by written or telecopy notice) to the Administrative Agent: (i) before 10:00
a.m., New York City time, three Business Days prior to prepayment, in the case
of Eurodollar Revolving Credit Loans, and (ii) before 10:00 a.m., New York City
time, one Business Day prior to prepayment, in the case of ABR Revolving Credit
Loans. Such notice shall specify the date and amount of prepayment and whether
the prepayment is of Eurodollar Revolving Credit Loans, ABR Revolving Credit
Loans or a combination thereof, and, if of a combination thereof, the amount
allocable to each. If a Eurodollar Revolving Credit Loan is prepaid on any day
other than the last day of the Interest Period applicable thereto, the relevant
Borrower shall also pay any amounts owing pursuant to Section 2.16. Upon receipt
of any such notice the Administrative Agent shall promptly notify each Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with (except in the
case of ABR Revolving Credit Loans) accrued interest to such date on the amount
prepaid. Partial prepayments of Revolving Credit Loans shall be in an aggregate
principal amount of $10,000,000 or a whole multiple of $1,000,000 in excess
thereof.
SECTION 2.15. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if after the Closing Date any
change in applicable law or regulation (including any change in the reserve
percentages provided for in Regulation D) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof shall change the basis of taxation of
payments to any Lender of the principal of or interest on any Eurodollar Loan or
Absolute Rate Loan made by such Lender (other than changes in respect of taxes
imposed on the overall net income of such Lender by the jurisdiction in which
such Lender has its principal office (or in which it holds any Eurodollar Loan
or Absolute Rate Loan) or by any political subdivision or taxing authority
therein and other than taxes that would not have been imposed but for the
failure of such Lender to comply with applicable certification, information,
documentation or other reporting requirements), or shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets of
or deposits with or for the account of such Lender, or shall impose on such
Lender or the London interbank market any other condition affecting this
Agreement or any Eurodollar Loan or Absolute Rate Loan made by such Lender, and
the result of any of the foregoing shall be to increase the cost to such Lender
of making or maintaining any Eurodollar Loan or Absolute Rate Loan or to reduce
the amount of any sum received or receivable by such Lender hereunder (whether
of principal, interest or otherwise) in respect of any Eurodollar Loan or
Absolute Rate Loan by an amount deemed by such Lender to be material, then the
relevant Borrower agrees to pay to such Lender as provided in paragraph (c)
below such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered. Notwithstanding the foregoing,
no Lender shall be entitled to request compensation under this paragraph with
respect to any Competitive Loan if the change giving rise to such request shall,
or in good faith should, have been taken into account in formulating the
Competitive Bid pursuant to which such Competitive Loan shall have been made.
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(b) If any Lender or any Issuing Lender shall have determined
that the adoption after the Closing Date hereof of any law, rule, regulation or
guideline regarding capital adequacy, or any change in any law, rule, regulation
or guideline regarding capital adequacy or in the interpretation or
administration of any of the foregoing by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any lending office of such Lender) or
Issuing Lender or any Lender's or Issuing Lender's holding company with any
request or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Lender's or Issuing
Lender's capital or on the capital of such Lender's or Issuing Lender's holding
company, if any, as a consequence of this Agreement or the Loans made by such
Lender or the LC Exposure of such Lender or Letters of Credit issued by such
Issuing Lender pursuant hereto to a level below that which such Lender or
Issuing Lender or such Lender's or Issuing Lender's holding company could have
achieved but for such applicability, adoption, change or compliance (taking into
consideration such Lender's or Issuing Lender's policies and the policies of
such Lender's or Issuing Lender's holding company with respect to capital
adequacy) by an amount deemed by such Lender or Issuing Lender to be material,
then from time to time Infinity agrees to pay to such Lender or Issuing Lender
as provided in paragraph (c) below such additional amount or amounts as will
compensate such Lender or Issuing Lender or such Lender's or Issuing Lender's
holding company for any such reduction suffered.
(c) A certificate of each Lender or Issuing Lender setting
forth such amount or amounts as shall be necessary to compensate such Lender or
Issuing Lender as specified in paragraph (a) or (b) above, as the case may be,
and the basis therefor in reasonable detail shall be delivered to the relevant
Borrower and shall be conclusive absent manifest error. The relevant Borrower
shall pay each Lender or Issuing Lender the amount shown as due on any such
certificate within 30 days after its receipt of the same. Upon the receipt of
any such certificate, the relevant Borrower shall be entitled, in its sole
discretion, if any requested Loan has not been made, to cancel its acceptance of
the relevant Competitive Bids or to cancel the Competitive Bid Request relating
thereto, subject to Section 2.16.
(d) Except as provided in this paragraph, failure on the part
of any Lender to demand compensation for any increased costs or reduction in
amounts received or receivable or reduction in return on capital with respect to
any period shall not constitute a waiver of such Lender's right to demand
compensation with respect to any other period. The protection of this Section
2.15 shall be available to each Lender regardless of any possible contention of
the invalidity or inapplicability of the law, rule, regulation, guideline or
other change or condition which shall have occurred or been imposed so long as
it shall be customary for Lenders affected thereby to comply therewith. No
Lender shall be entitled to compensation under this Section 2.15 for any costs
incurred or reductions suffered with respect to any date unless it shall have
notified the relevant Borrower that it will demand compensation for such costs
or reductions under paragraph (c) above not more than 90 days after the later of
(i) such date and (ii) the date on which it shall have become aware of such
costs or reductions. Notwithstanding any other provision of this Section 2.15,
no Lender shall demand compensation for any increased cost or reduction referred
to above if it shall not at the time be the general policy or practice of such
Lender to demand such compensation in similar circumstances under comparable
provisions of other credit agreements, if any. In the event any Borrower shall
reimburse any Lender pursuant to this Section 2.15 for any cost and such Lender
shall subsequently receive a refund in respect thereof, such Lender shall so
notify such Borrower and, upon its request, will pay to such Borrower the
portion of such refund which such Lender shall determine in good faith to be
allocable to the cost so reimbursed. The covenants contained in this Section
2.15 shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
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34
SECTION 2.16. Indemnity. Each Borrower agrees to indemnify
each Lender against any loss or expense described below which such Lender may
sustain or incur as a consequence of (a) any failure by such Borrower to fulfill
on the date of any borrowing hereunder the applicable conditions set forth in
Article IV, (b) any failure by such Borrower to borrow, continue or convert any
Loan hereunder after irrevocable notice of such borrowing, continuation or
conversion has been given or deemed given or Competitive Bids have been accepted
pursuant to Article II or (c) any payment, prepayment or conversion of a
Eurodollar Loan or Absolute Rate Loan made to such Borrower required by any
other provision of this Agreement or otherwise made or deemed made, whatever the
circumstances may be that give rise to such payment, prepayment or conversion,
or any transfer of any such Loan pursuant to Section 2.21 or 9.4(b), on a date
other than the last day of the Interest Period applicable thereto; provided,
that any request for indemnification made by any Lender to any Borrower pursuant
to clause (c) hereof shall be accompanied by such Lender's calculation of such
amount to be indemnified. The loss or expense for which such Lender shall be
indemnified under this Section 2.16 shall be equal to the excess, if any, as
reasonably determined by such Lender, of (i) its cost of obtaining the funds for
the Loan being paid, prepaid, converted or not borrowed, continued or converted
(assumed to be the Eurodollar Rate in the case of Eurodollar Loans) for the
period from the date of such payment, prepayment, conversion or failure to
borrow, continue or convert to the last day of the Interest Period for such Loan
(or, in the case of a failure to borrow, continue or convert, the Interest
Period for such Loan which would have commenced on the date of such failure)
over (ii) the amount of interest (as reasonably determined by such Lender) that
would be realized by such Lender in reemploying the funds so paid, prepaid,
converted or not borrowed, continued or converted for such period or Interest
Period, as the case may be; provided, however, that such amount shall not
include any loss of a Lender's margin or spread over its cost of obtaining funds
as described above. A certificate of any Lender setting forth any amount or
amounts which such Lender is entitled to receive pursuant to this Section 2.16
shall be delivered to the relevant Borrower and shall be conclusive absent
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
SECTION 2.17. Pro Rata Treatment; Funding Matters; Evidence of
Debt. (a) Except as required under Section 2.21, each payment or prepayment of
principal of any Revolving Credit Loan, each payment of interest on the
Revolving Credit Loans,, each payment of LC Fees, and each reduction of the
Commitments, shall be allocated pro rata among the Lenders in accordance with
their respective Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Revolving Credit Loans); and, each payment of the Commitment Fees
pursuant to Section 2.9(a)(i) shall be allocated pro rata among the Lenders in
accordance with their respective Commitment Fee Calculation Amount. Each Lender
agrees that in computing such Lender's portion of any Loan to be made hereunder,
the Administrative Agent may, in its discretion, round such Lender's percentage
of such Loan to the next higher or lower whole Dollar amount.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the relevant borrowing date that such Lender will not
make available to the Administrative Agent such Lender's portion of a borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such borrowing in
accordance with this Agreement and the Administrative Agent may, in reliance
upon such assumption, make available to the relevant Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have made
such portion available to the Administrative Agent, each of such Lender and the
relevant Borrower agrees to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower until the date such
amount is repaid to the Administrative Agent at (i) in the case of such
Borrower, the interest rate applicable at the time to the relevant Loan and (ii)
in the case of such Lender,
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35
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, conversion notices, competitive bid requests and
competitive bid acceptances or rejections and (b) paying on behalf of such
Subsidiary Borrower any Subsidiary Borrower Obligations owing by such Subsidiary
Borrower; provided, that each Subsidiary Borrower shall retain the right, in its
discretion, to directly give any or all of such notices or make any or all of
such payments.
(g) The Administrative Agent shall promptly notify the Lenders
upon receipt of any Subsidiary Borrower Designation and Subsidiary Borrower
Request. The Administrative Agent shall promptly notify the Swingline Lenders
upon receipt of any designation of a Subsidiary Borrower as a Swingline
Borrower.
SECTION 2.18. Sharing of Setoffs. Except to the extent that
this Agreement provides for payments to be allocated to Revolving Credit Loans,
Swingline Loans or Competitive Loans, as the case may be, each Lender agrees
that if it shall, through the exercise of a right of banker's lien, setoff or
counterclaim against any Borrower, or pursuant to a secured claim under Section
506 of Title 11 of the United States Code or other security or interest arising
from, or in lieu of, such secured claim, received by such Lender under any
applicable bankruptcy, insolvency or other similar law or otherwise, or by any
<PAGE> 40
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other means (other than pursuant to any provision of this Agreement), obtain
payment (voluntary or involuntary) in respect of any category of its Loans or
such Lender's Revolving Credit Percentage of any LC Disbursement as a result of
which the unpaid principal portion of such Loans or the unpaid portion of such
Lender's Revolving Credit Percentage of the LC Disbursements shall be
proportionately less than the unpaid principal portion of such Loans or the
unpaid portion of the Revolving Credit Percentage of the LC Disbursements of any
other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in such Loans or the Revolving Credit
Percentage of the LC Disbursements of such other Lender, so that the aggregate
unpaid principal amount of such Loans and participations in such Loans held by
each Lender or the Revolving Credit Percentage of LC Disbursements and
participations in LC Disbursements held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all such Loans or LC
Disbursements then outstanding as the principal amount of such Loans or the
Revolving Credit Percentage of LC Disbursements of each Lender prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all such Loans or LC Disbursements outstanding prior to such
exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.18 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. Any Lender holding a participation in a
Loan or LC Disbursement deemed to have been so purchased may exercise any and
all rights of banker's lien, setoff or counterclaim with respect to any and all
moneys owing by any Borrower to such Lender by reason thereof as fully as if
such Lender had made a Loan directly such Borrower or issued a Letter of Credit
for the account of Infinity in the amount of such participation.
SECTION 2.19. Payments. (a) Except as otherwise expressly
provided herein, each Borrower shall make each payment (including principal of
or interest on any Loan or any Fees or other amounts) hereunder without setoff
or counterclaim and shall make each such payment not later than 12:00 noon, New
York City time, on the date when due in Dollars to the Administrative Agent at
its offices at The Chase Manhattan Bank, 270 Park Avenue, New York, New York
10017, 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 2.20. Taxes. (a) Any and all payments by each Borrower
hereunder to or for the benefit of a Non-U.S. Person shall be made, in
accordance with Section 2.19, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto imposed by or on behalf
of the United States or any political subdivision thereof, excluding taxes
imposed on (or measured by) such Non-U.S. Person's net income or net receipts,
franchise taxes, taxes on doing business or taxes imposed on capital or net
worth (all such nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If any
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder to a Non-U.S. Person, (i) the sum payable shall be
increased by the amount necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.20) such Non-U.S. Person shall receive an amount equal to the sum it would
have received had no such deductions been made, (ii) such Borrower shall make
such deductions and (iii) such Borrower shall pay the full amount deducted to
the relevant taxing authority or other Governmental Authority in accordance with
applicable law.
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(b) The relevant Borrower agrees to pay and reimburse on
demand all transfer, stamp, documentary or other similar taxes, assessments or
charges levied by any Governmental Authority in respect of this Agreement, any
of the Loans or the Letters of Credit (all such taxes, assessments or charges
hereinafter referred to as "Other Taxes").
(c) The relevant Borrower will indemnify each Lender (or
Transferee) and the Administrative Agent for the full amount of Taxes and Other
Taxes (including any Taxes or Other Taxes imposed by the applicable jurisdiction
on amounts payable under this Section 2.20) paid by such Lender (or Transferee)
or the Administrative Agent, as the case may be, and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted by
the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days after the date such Lender (or
Transferee) or the Administrative Agent, as the case may be, makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes withheld by any Borrower in respect of any payment to a Non-U.S.
Person, such Borrower will furnish to the Administrative Agent, at its address
referred to in Section 9.1 for delivery to such Non-U.S. Person, the original or
a certified copy of a receipt (if available) evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.20
shall survive the payment in full of the principal of and interest on all Loans
made hereunder and of all other amounts payable hereunder.
(f) Each Lender (or Transferee) that is not a citizen or
resident of the United States of America, a corporation, partnership or other
entity created or organized in or under the laws of the United States of
America, or any estate or trust that is subject to federal income taxation
regardless of the source of its income (a "Non-U.S. Person") shall deliver to
Infinity and the Administrative Agent (or, in the case of a participant, to the
Lender from which the related participation shall have been purchased) two
copies of either U.S. Internal Revenue Service Form 1001 or Form 4224, or, in
the case of a Non-U.S. Person claiming exemption from U.S. federal withholding
tax under Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a Form W-8, or any subsequent versions thereof or
successors thereto (and, if such Non-U.S. Person delivers a Form W-8, an annual
certificate representing that such Non-U.S. Person is not a "bank" for purposes
of Section 881(c) of the Code, is not a 10-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Code) of Infinity and is not a controlled
foreign corporation related to Infinity (within the meaning of Section 864(d)(4)
of the Code)), properly completed and duly executed by such Non-U.S. Person
claiming complete exemption from U.S. federal withholding tax on all payments by
any Borrower under this Agreement. Such forms shall be delivered by each
Non-U.S. Person promptly after it becomes a party to this Agreement (or, in the
case of any participant, promptly after the date such participant purchases the
related participation). In addition, each Non-U.S. Person shall deliver such
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Person. Each Non-U.S. Person shall promptly notify
Infinity at any time it determines that it is no longer in a position to provide
any previously delivered certificate to Infinity (or any other form of
certification adopted by the U.S. taxing authorities for such purpose). Unless
Infinity and the Administrative Agent (or, in the case of a participant, the
Lender from which the related participation shall have been purchased) have
received forms or other documents satisfactory to them indicating that payments
hereunder are not subject to United States withholding tax, the relevant
Borrower or the Administrative Agent shall withhold taxes from such payments at
the applicable statutory rate in the case of payments of interest to or for any
Lender (or Transferee) that is a Non-U.S. Person. Notwithstanding any other
provision of this Section 2.20(f), a Non-U.S. Person shall not be required to
deliver any form pursuant to this Section 2.20(f) that such Non-U.S. Person is
not
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legally able to deliver by reason of the adoption of any law, rule or
regulation, or any change in any law, rule or regulation or in the
interpretation thereof, in each case occurring after the date such Non-U.S.
Person becomes a Lender (or Transferee).
(g) No Borrower shall be required to pay any additional
amounts to any Non-U.S. Person in respect of United States withholding tax
pursuant to paragraph (a) above (i) if the obligation to pay such additional
amounts would not have arisen but for a failure by such Non-U.S. Person to
comply with the provisions of paragraph (f) above or (ii) in the case of a
Transferee, to the extent such additional amounts exceed the additional amounts
that would have been payable had no transfer or assignment to such Transferee
occurred; provided, however, that each Borrower shall be required to pay those
amounts to any Lender (or Transferee) that it was required to pay hereunder
prior to the failure of such Lender (or Transferee) to comply with the
provisions of such paragraph (f).
SECTION 2.21. Termination or Assignment of Commitments Under
Certain Circumstances. (a) Any Lender (or Transferee) claiming any additional
amounts payable pursuant to Section 2.15 or Section 2.20 shall use reasonable
efforts (consistent with legal and regulatory restrictions) to file any
certificate or document requested by any Borrower or to change the jurisdiction
of its applicable lending office if the making of such a filing or change would
avoid the need for or reduce the amount of any such additional amounts which may
thereafter accrue and would not, in the sole determination of such Lender (or
Transferee), be otherwise disadvantageous to such Lender (or Transferee).
(b) In the event that (x) any Lender shall have delivered a
notice or certificate pursuant to Section 2.15, (y) any Borrower shall be
required to make additional payments to any Lender under Section 2.20, or (z)
any Lender (a "Non-Consenting Lender") shall withhold its consent to any
amendment described in clause (i) or (ii) of Section 9.8(b) as to which consents
have been obtained from Lenders having Total Facility Percentages aggregating at
least 90%, Infinity shall have the right, at its own expense, upon notice to
such Lender (or Lenders) and the Administrative Agent, (i) to terminate the
Commitments of such Lender (except in the case of clause (z) above) or (ii) to
require such Lender (or, in the case of clause (z) above, each Non-Consenting
Lender) to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in Section 9.4) all its interests, rights and
obligations under this Agreement to one or more other financial institutions
acceptable to the Administrative Agent (which approval shall not be unreasonably
withheld) which shall assume such obligations; provided, that (w) in the case of
any replacement of Non-Consenting Lenders, each assignee shall have consented to
the relevant amendment, (x) no such termination or assignment shall conflict
with any law, rule or regulation or order of any Governmental Authority, (y) the
Borrowers or the assignee (or assignees), as the case may be, shall pay to each
affected Lender in immediately available funds on the date of such termination
or assignment the principal of and interest accrued to the date of payment on
the Loans made by it hereunder and all other amounts accrued for its account or
owed to it hereunder and (z) Infinity may not terminate Commitments representing
more than 10% of the original aggregate Commitments pursuant to this paragraph
(b).
SECTION 2.22. Currency Equivalents. (a) The Administrative
Agent shall determine the Dollar equivalent of each Competitive Bid Loan in a
Foreign Currency as of the first day of each Interest Period applicable thereto
and, in the case of any such Interest Period of more than three months, at
three-month intervals after the first day thereof. The Administrative Agent
shall promptly notify the Borrower and the Lenders of the Dollar equivalent so
determined by it. Each such determination shall be based on the Spot Rate (i) on
the date of the related Competitive Bid Request, for purposes of the initial
determination of such Competitive Bid Loan, and (ii) on the fourth Business Day
prior to the date on which such Dollar equivalent is to be determined, for
purposes of subsequent determinations.
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(b) The Administrative Agent shall determine the Dollar
equivalent of the Aggregate L/C Exposure related to each Letter of Credit issued
in a Foreign Currency as of the date of the issuance thereof, at three-month
intervals after the date of issuance thereof and as of the date of each drawing
thereunder. Each such determination shall be based on the Spot Rate (i) on the
date of the related notice of any proposed issuance of a Letter of Credit
pursuant to Section 2.7(c), in the case of the initial determination of such
Letter of Credit, (ii) on the second Business Day prior to the date as of which
such Dollar equivalent is to be determined, in the case of any subsequent
determination with respect to an outstanding Letter of Credit and (iii) on the
second Business Day prior to the related drawing thereunder, in the case of any
determination as of a drawing thereunder.
(c) If after giving effect to any such determination of a
Dollar equivalent under (a) or (b) above, the Dollar equivalent of (a) or (b)
above exceeds $150,000,000, the Borrower shall within five Business Days, (i),
in the case of an excess determined pursuant to (a) above, prepay outstanding
Competitive Bid Loans in Foreign Currencies to eliminate such excess, (ii), in
the case of an excess determined pursuant to (b) above, prepay outstanding
Letters of Credit in Foreign Currencies to eliminate such excess, or (iii), in
each case, take such other action to the extent necessary to eliminate any such
excess; provided, whether or not the Dollar equivalent of (a) or (b) above
exceeds $150,000,000, if after giving effect to any such determination of a
Dollar equivalent under (a) or (b) above, the Commitment Utilization Percentage
is greater than 105%, the Borrower shall within five Business Days prepay
outstanding Competitive Bid Loans in Foreign Currencies, prepay outstanding
Letters of Credit in Foreign Currencies or take such other action to the extent
necessary to eliminate any such excess.
SECTION 2.23. Judgment Currency. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum due from the
Borrower hereunder in the currency expressed to be payable herein (the
"specified currency") into another currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the specified currency with such other
currency at the Administrative Agent's London office on any Business Day
preceding that on which the final judgement is given. The obligations of the
Borrower in respect of any sum due to any Lender or the Administrative Agent
hereunder shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the Business Day
following receipt by such Lender or the Administrative Agent, as the case may
be, of any sum adjudged to be so due in such other currency such Lender or the
Administrative Agent, as the case may be, may in accordance with normal banking
procedures purchase the specified currency with such other currency. If the
amount of the specified currency so purchased is less than the sum originally
due to such Lender or the Administrative Agent, as the case may be, in the
specified currency, the Borrower agrees, to the fullest extent that it may
effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Administrative Agent, as the case may
be, against such loss, and if the amount of the specified currency so purchased
exceeds (i) the sum originally due to any Lender or the Administrative Agent, as
the case may be, in the specified currency and (ii) any amounts shared with
other Lenders as a result of allocations of such excess as a disproportionate
payment to such Lender as compared to such Lender's Total Facility Percentage,
such Lender or the Administrative Agent, as the case may be, agrees to remit
such excess to the Borrower.
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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: is a corporation, partnership or other entity duly
organized and validly existing under the laws of the jurisdiction of its
organization; 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 is qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify would result in a
Material Adverse Effect.
SECTION 3.2. Financial Condition. (a) The consolidated balance
sheet of Infinity and its Consolidated Subsidiaries as at December 31, 1999, and
the related consolidated statements of income and cash flows of Infinity and its
Consolidated Subsidiaries for the fiscal year ended on such date, with the
opinion thereon of KPMG LLP, heretofore furnished to each of the Lenders, fairly
present the consolidated financial condition of Infinity and its Consolidated
Subsidiaries as at such date and the consolidated results of their operations
for the fiscal year ended on such date in accordance with GAAP. Neither Infinity
nor any of its Material Subsidiaries had on such date any known material
contingent liability, except as referred to or reflected or provided for in the
Exchange Act Report or in such balance sheets (or the notes thereto) as at such
date.
(b) As of the date hereof, there has been no material adverse
change in the consolidated financial condition, operations, assets, business or
prospects taken as a whole of Infinity and its Consolidated Subsidiaries from
that set forth in the consolidated financial statements of Infinity for the
fiscal year ended December 31, 1999 referred to in Section 3.2(a) (it being
agreed, however, that none of (i) the reduction by any rating agency of any
rating assigned to Indebtedness of Infinity, (ii) non-cash provisions for loan
losses and additions to valuation allowances, (iii) any change in GAAP or
compliance therewith and (iv) any legal or arbitral proceedings which have been
disclosed in the Exchange Act Report, whether threatened, pending, resulting in
a judgment or otherwise, prior to the time a final judgment for the payment of
money shall have been recorded against Infinity or any Material Subsidiary by
any Governmental Authority having jurisdiction, and the judgment is
non-appealable (or the time for appeal has expired) and all stays of execution
have expired or been lifted shall, in and of itself, constitute such a material
adverse change).
SECTION 3.3. Litigation. Except as disclosed to the Lenders in
the Exchange Act Report filed prior to the Closing Date or otherwise disclosed
in writing to the Lenders prior to the Closing Date, there are no legal or
arbitral proceedings, or any proceedings by or before any Governmental
Authority, pending or (to the knowledge of Infinity) threatened against Infinity
or any of its Material Subsidiaries which have resulted in a Material Adverse
Effect (it being agreed that any legal or arbitral proceedings which have been
disclosed in the Exchange Act Report, whether threatened, pending, resulting in
a judgment or otherwise, prior to the time a final judgment for the payment of
money shall have been recorded against Infinity or any Material Subsidiary by
any Governmental Authority having jurisdiction, and the judgment is
non-appealable (or the time for appeal has expired) and all stays of execution
have expired or been lifted shall not, in and of itself, be deemed to result in
a
<PAGE> 45
41
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.
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.
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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, 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: Infinity and each of its Material
Subsidiaries have all the FCC Licenses necessary for the conduct of their
respective businesses; Infinity and each of its Material Subsidiaries are in
substantial compliance with the Communications Act and with the rules and
regulations thereunder; 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 Infinity and its Material Subsidiaries have no reason to believe that any
FCC License will not be renewed in the ordinary course of business.
<PAGE> 47
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ARTICLE IV.
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 4.1. Effectiveness. The effectiveness of this
Agreement is subject to the satisfaction of the following conditions (the date
on which all of such conditions shall have been satisfied, the "Closing Date"):
(a) Credit Agreement. The Administrative Agent shall have
received this Agreement, executed and delivered by a duly authorized
officer of Infinity.
(b) Closing Certificate. The Administrative Agent shall have
received a Closing Certificate, substantially in the form of Exhibit E,
of Infinity, with appropriate insertions and attachments.
(c) Amendment. The Administrative Agent shall have received
the amendment to each Existing Credit Agreement duly executed by the
Required Lenders (as defined in the applicable Existing Credit
Agreement) required to permit (i) the Viacom Merger and (ii) this
Agreement and the 364-Day Credit Agreement and the consummation of the
transactions contemplated hereby and thereby.
(d) Opinion of Counsel. The Administrative Agent shall have
received an opinion of the general counsel of Infinity in form and
substance satisfactory to the Administrative Agent.
SECTION 4.2. Initial Loans to Subsidiary Borrowers. The
obligation of each Lender to make its initial Loan to a particular Subsidiary
Borrower, if designated as such after the Closing Date, is subject to the
satisfaction of the conditions that (a) Infinity shall have delivered to the
Administrative Agent a Subsidiary Borrower Designation for such Subsidiary
Borrower and (b) such Subsidiary Borrower shall have furnished to the
Administrative Agent (i) a Subsidiary Borrower Request, (ii) a Closing
Certificate of such Subsidiary Borrower, with appropriate insertions and
attachments and (iii) one or more executed legal opinions with respect to such
Subsidiary Borrower, in form and substance reasonably satisfactory to the
Administrative Agent and including, to the extent applicable, the opinions set
forth in Exhibits B-7 and B-8. Infinity may from time to time deliver a
subsequent Subsidiary Borrower Designation with respect to any Subsidiary
Borrower, countersigned by such Subsidiary Borrower, for the purpose of
terminating such Subsidiary Borrower's designation as such, so long as, on the
effective date of such termination, all Subsidiary Borrower Obligations in
respect of such Subsidiary Borrower shall have been paid in full. In addition,
if on any date a Subsidiary Borrower shall cease to be a Subsidiary, all
Subsidiary Borrower Obligations in respect of such Subsidiary Borrower shall
automatically become due and payable on such date and no further Loans may be
borrowed by such Subsidiary Borrower hereunder.
SECTION 4.3. All Credit Events. The obligation of each Lender
to make each Loan, and the obligation of each Issuing Lender to issue each
Letter of Credit, are subject to the satisfaction of the following conditions:.
(a) The Administrative Agent shall have received a request
for, or notice of, such Credit Event if and as required by Section 2.3,
2.4, 2.6 or 2.7, as applicable;
(b) Each of the representations and warranties made by
Infinity and, in the case of a borrowing by a Subsidiary Borrower, by
such Subsidiary Borrower, in Article III, or in any
<PAGE> 48
44
certificate delivered pursuant hereto, shall be true and correct in all
material respects on and as of the date of such Credit Event with the
same effect as though made on and as of such date, except to the extent
such representations and warranties expressly relate to an earlier date
in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date;
(c) At the time of and immediately after giving effect to such
Credit Event no Default or Event of Default shall have occurred and be
continuing; and
(d) After giving effect to such Credit Event, (i) the
Outstanding Revolving Extensions of Credit of each Lender shall not
exceed such Lender's Commitment then in effect and (ii) the Total
Facility Exposure shall not exceed the Total Commitment then in effect.
Each Credit Event shall be deemed to constitute a representation and warranty by
Infinity on the date of such Credit Event as to the matters specified in
paragraphs (b) and (c) of this Section 4.3.
ARTICLE V.
COVENANTS
Infinity covenants and agrees with each Lender that, as long
as the Commitments shall be in effect or the principal of or interest on any
Loan shall be unpaid, or there shall be any Aggregate LC Exposure, unless the
Required Lenders shall otherwise consent in writing:
SECTION 5.1. Financial Statements. Infinity shall deliver to
each of the Lenders:
(a) within 55 days after the end of each of the first three
quarterly fiscal periods of each fiscal year of Infinity, consolidated
statements of income and cash flows of Infinity and its Consolidated
Subsidiaries for such period and for the period from the beginning of
the respective fiscal year to the end of such period, and the related
consolidated balance sheet as at the end of such period, setting forth
in each case in comparative form the corresponding consolidated figures
for the corresponding period in the preceding fiscal year, accompanied
by a certificate of a Financial Officer of Infinity which certificate
shall state that such financial statements fairly present the
consolidated financial condition and results of operations of Infinity
and its Consolidated Subsidiaries in accordance with GAAP as at the end
of, and for, such period, subject to normal year-end audit adjustments;
provided, that the requirement herein for the furnishing of such
quarterly financial statements may be fulfilled by providing to the
Lenders the report of Infinity to the SEC on Form 10-Q for the
applicable quarterly period, accompanied by the officer's certificate
described in the last sentence of this Section 5.1;
(b) within 105 days after the end of each fiscal year of
Infinity, consolidated statements of income and cash flows of Infinity
and its Consolidated Subsidiaries for such year and the related
consolidated balance sheet as at the end of such year, setting forth in
comparative form the corresponding consolidated figures for the
preceding fiscal year, and accompanied by an opinion thereon
(unqualified as to the scope of the audit) of independent certified
public accountants of recognized national standing, which opinion shall
state that such consolidated financial statements fairly present the
consolidated financial condition and results of operations of Infinity
and its Consolidated Subsidiaries as at the end of, and for, such
fiscal year; provided, that the requirement herein for the furnishing
of annual financial statements may be fulfilled by
<PAGE> 49
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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 required
hereunder shall be provided within 10 days after the due date
for filing notice of such failure with the PBGC;
<PAGE> 50
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(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 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
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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
(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
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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 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;
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(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
Subsidiary Borrower under this Agreement, (iii) Indebtedness incurred on any
date when, after giving effect thereto, the aggregate principal amount of
Indebtedness incurred pursuant to this clause (iii) that is outstanding on such
date (it being understood that, for the purposes of this clause (iii), the term
"Indebtedness" does not include borrowings under this Agreement or under the
Existing Credit Agreement or under the 364-Day Credit Agreement or Excluded
Indebtedness) does not exceed
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$600,000,000 at any time and (iv) Indebtedness existing at any time under the
Existing Infinity Credit Agreement or under the 364-Day Credit Agreement.
SECTION 5.7. Consolidated Leverage Ratio. Infinity will not
permit the Consolidated Leverage Ratio at the end of any fiscal quarter to be
greater than .60 to 1.00; provided, as soon as, and for so long as, the Debt
Rating is equal to or greater than A- by S&P and A3 by Moody's 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 Moody's for any
period this Section 5.8 shall be suspended.
SECTION 5.9. Use of Proceeds. On and after the Closing Date,
each Borrower will use the proceeds of the Loans and will use the Letters of
Credit hereunder solely for general corporate purposes, including, without
limitation, acquisitions and commercial paper backup (in each case in compliance
with all applicable legal and regulatory requirements, including, without
limitation, Regulation U and the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended, and the regulations thereunder);
provided, that neither any Agent nor any Lender shall have any responsibility as
to the use of any of such proceeds.
SECTION 5.10. Transactions with Affiliates. Excepting
transactions directly or indirectly entered into pursuant to any agreement
entered into prior to the Closing Date, or transactions contemplated by any
agreement (including without limitation the Intercompany Agreement, dated
December 15, 1998, and the Tax Sharing Agreement, dated December 15, 1998, each
between Infinity and CBS) directly or indirectly entered into prior to the
Closing Date, Infinity will not, and will not permit any of its Material
Subsidiaries to, directly or indirectly enter into any material transaction with
any Affiliate of Infinity, including CBS or, following the consummation of the
Viacom Merger, Viacom, except on terms at least as favorable to Infinity or such
Subsidiary as it could obtain on an arm's-length basis.
ARTICLE VI.
EVENTS OF DEFAULT.
In case of the happening of any of the following events
("Events of Default"):
(a) (i) any Borrower shall default in the payment when due of
any principal of any Loan or (ii) any Borrower shall default in the
payment when due of any interest on any Loan, any reimbursement
obligation in respect of any LC Disbursement, any Fee or any other
amount payable by it hereunder and, in the case of this clause (ii),
such default shall continue unremedied for a period of five Business
Days;
(b) any representation, warranty or certification made or
deemed made herein (or in any modification or supplement hereto) by any
Borrower, or any certificate furnished to any Lender or the
Administrative Agent pursuant to the provisions hereof, shall prove to
have been false or misleading in any material respect as of the time
made, deemed made or furnished;
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(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
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;
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52
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, (II) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of each Borrower accrued hereunder, shall
become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by each
Borrower, anything contained herein to the contrary notwithstanding, and (III)
require that Infinity deposit cash with the Administrative Agent, in an amount
equal to the Aggregate LC Exposure, as collateral security for the repayment of
any future LC Disbursements; and in any event with respect to any Borrower
described in paragraph (f) or (g) above, (A) if such Borrower is Infinity, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of each Borrower accrued hereunder, shall
automatically become due and payable and Infinity shall be required to deposit
cash with the Administrative Agent, in an amount equal to the Aggregate LC
Exposure, as collateral security for the repayment of any future drawings under
the Letters of Credit and (B) if such Borrower is a Subsidiary Borrower, the
principal of the Loans made to such Subsidiary Borrower then outstanding,
together with accrued interest thereon and all other liabilities of such
Subsidiary Borrower accrued hereunder, shall automatically become due and
payable, in each case without presentment, demand,
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protest or any other notice of any kind, all of which are hereby expressly
waived by each Borrower, anything contained herein to the contrary
notwithstanding.
ARTICLE VII.
THE AGENTS
In order to expedite the transactions contemplated by this
Agreement, each Agent is hereby appointed to act as Agent on behalf of the
Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are specifically delegated to the Administrative Agent
by the terms and provisions hereof, together with such actions and powers as are
reasonably incidental thereto. The Administrative Agent is hereby expressly
authorized by the Lenders and the Issuing Lenders, without hereby limiting any
implied authority, (a) to receive on behalf of the Lenders all payments of
principal of and interest on the Loans and the LC Disbursements and all other
amounts due to the Lenders and Issuing Lenders hereunder, and promptly to
distribute to each Lender and Issuing Lender its proper share of each payment so
received; (b) to give notice on behalf of each of the Lenders to the Borrowers
of any Event of Default specified in this Agreement of which the Administrative
Agent has actual knowledge acquired in connection with its agency hereunder; and
(c) to distribute to each Lender and Issuing Lender copies of all notices,
financial statements and other materials delivered by any Borrower pursuant to
this Agreement as received by the Administrative Agent.
Neither any Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by any
Borrower of any of the terms, conditions, covenants or agreements contained in
this Agreement. The Agents shall not be responsible to the Lenders for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement or other instruments or agreements. The Administrative Agent shall in
all cases be fully protected in acting, or refraining from acting, in accordance
with written instructions signed by the Required Lenders (or, when expressly
required hereby, all the Lenders) and, except as otherwise specifically provided
herein, such instructions and any action or inaction pursuant thereto shall be
binding on all the Lenders and the Issuing Lenders. The Administrative Agent
shall, in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper Person or Persons. Neither the
Agents nor any of their directors, officers, employees or agents shall have any
responsibility to any Borrower on account of the failure of or delay in
performance or breach by any Lender or Issuing Lender of any of its obligations
hereunder or to any Lender or Issuing Lender on account of the failure of or
delay in performance or breach by any other Agent, any other Lender or Issuing
Lender or any Borrower of any of their respective obligations hereunder or in
connection herewith. The Administrative Agent may execute any and all duties
hereunder by or through agents or employees and shall be entitled to rely upon
the advice of legal counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or suffered in good faith
by it in accordance with the advice of such counsel.
The Lenders and the Issuing Lenders hereby acknowledge that
the Administrative Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement unless
it shall be requested in writing to do so by the Required Lenders.
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Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon
any such resignation, the Required Lenders shall have the right to appoint from
the Lenders a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint from the
Lenders a successor Administrative Agent which shall be a bank with an office in
New York, New York, having a combined capital and surplus of at least
$500,000,000 or an affiliate of any such bank, which successor shall be
acceptable to Infinity (such acceptance not to be unreasonably withheld). Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor bank, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After the Administrative Agent's resignation hereunder,
the provisions of this Article and Section 9.5 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
With respect to the Loans made by them and their LC Exposure
hereunder, the Agents in their individual capacity and not as Agents shall have
the same rights and powers as any other Lender and may exercise the same as
though they were not Agents, and the Agents and their affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrowers or any of their respective Subsidiaries or any Affiliate thereof
as if they were not Agents.
Each Lender and Issuing Lender agrees (i) to reimburse the
Administrative Agent in the amount of its pro rata share (based on its Total
Facility Percentage or, after the date on which the Loans shall have been paid
in full, based on its Total Facility Percentage immediately prior to such date)
of any reasonable, out-of-pocket expenses incurred for the benefit of the
Lenders or the Issuing Lenders by the Administrative Agent, including reasonable
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders or the Issuing Lenders, which shall not have been
reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold
harmless the Administrative Agent and any of its directors, officers, employees
or agents, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against it in its capacity as
Administrative Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by it under this Agreement, to the extent the same
shall not have been reimbursed by or on behalf of Infinity; provided, that no
Lender or Issuing Lender shall be liable to the Administrative Agent or any such
director, officer, employee or agent for any portion of such liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent or any of its directors, officers,
employees or agents.
Each Lender and Issuing Lender acknowledges that it has,
independently and without reliance upon the Agents or any other Lender or
Issuing Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and Issuing Lender also acknowledges that it will,
independently and without reliance upon any Agent or any other Lender or Issuing
Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
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Neither the Documentation Agent, the Co-Syndication Agents,
the Arrangers nor any managing agent shall have any duties or responsibilities
hereunder in its capacity as such.
ARTICLE VIII.
GUARANTEE
SECTION 8.1. Guarantee. In order to induce the Administrative
Agent and the Lenders to become bound by this Agreement and to make the Loans
hereunder to the Subsidiary Borrowers, and in consideration thereof, Infinity
hereby unconditionally and irrevocably guarantees, as primary obligor and not
merely as surety, to the Administrative Agent, for the ratable benefit of the
Lenders, the prompt and complete payment and performance by each Subsidiary
Borrower when due (whether at stated maturity, by acceleration or otherwise) of
the Subsidiary Borrower Obligations, and Infinity further agrees to pay any and
all expenses (including, without limitation, all reasonable fees, charges and
disbursements of counsel) which may be paid or incurred by the Administrative
Agent or by the Lenders in enforcing, or obtaining advice of counsel in respect
of, any of their rights under the guarantee contained in this Article VIII. The
guarantee contained in this Article VIII, subject to Section 8.5, shall remain
in full force and effect until the Subsidiary Borrower Obligations are paid in
full and the Commitments are terminated, notwithstanding that from time to time
prior thereto any Subsidiary Borrower may be free from any Subsidiary Borrower
Obligations.
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.
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SECTION 8.3. Amendments, etc. with respect to the Subsidiary
Borrower Obligations. Infinity shall remain obligated under this Article VIII
notwithstanding that, without any reservation of rights against Infinity, and
without notice to or further assent by Infinity, any demand for payment of or
reduction in the principal amount of any of the Subsidiary Borrower Obligations
made by the Administrative Agent or any Lender may be rescinded by the
Administrative Agent or such Lender, and any of the Subsidiary Borrower
Obligations continued, and the Subsidiary Borrower Obligations, or the liability
of any other party upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or any
Lender, and this Agreement and any other documents executed and delivered in
connection herewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Required Lenders (or all Lenders, as the case may be)
may deem advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by the Administrative Agent or any Lender for
the payment of the Subsidiary Borrower Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Administrative Agent nor any Lender
shall have any obligation to protect, secure, perfect or insure any lien at any
time held by it as security for the Subsidiary Borrower Obligations or for the
guarantee contained in this Article VIII or any property subject thereto.
SECTION 8.4. Guarantee Absolute and Unconditional. Infinity
waives any and all notice of the creation, renewal, extension or accrual of any
of the Subsidiary Borrower Obligations and 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
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VIII, and shall not impair or affect the rights and remedies, whether express,
implied or available as a matter of law, of the Administrative Agent and the
Lenders against Infinity.
SECTION 8.5. Reinstatement. The guarantee contained in this
Article VIII shall continue to be effective, or be reinstated, as the case may
be, if at any time payment, or any part thereof, of any of the Subsidiary
Borrower Obligations is rescinded or must otherwise be restored or returned by
the Administrative Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any Subsidiary Borrower or upon or
as a result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, any Subsidiary Borrower or any substantial part
of its property, or otherwise, all as though such payments had not been made.
SECTION 8.6. Payments. Infinity hereby agrees that any
payments in respect of the Subsidiary Borrower Obligations pursuant to this
Article VIII will be paid to the Administrative Agent without setoff or
counterclaim in Dollars at the office of the Administrative Agent specified in
Section 9.1.
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, 40 West 52nd Street, New York, New York 10019, Attention
of Chief Financial Officer and Treasurer (Telecopy No. (212) 314-9336),
with a copy to General Counsel (Telecopy No. (212) 597-4031);
(b) if to the Administrative Agent, to it at The Chase
Manhattan Bank, 270 Park Avenue, New York, New York 10017, Attention:
William Rottino (Telecopy No. 212-270-1204), with a copy to The Chase
Manhattan Bank, One Chase Manhattan Plaza, New York, New York, 10080,
Attention: Camille Wilson (Telecopy No. 212-552-5700);
(c) if to any Issuing Lender, to it at the address for notices
specified in the applicable Issuing Lender Agreement;
(d) if to a Lender, to it at its address (or telecopy number)
set forth in Schedule 1.1 or in the Assignment and Acceptance pursuant
to which such Lender shall have become a party hereto; and
(e) if to a Subsidiary Borrower, to it at its address set
forth in the relevant Subsidiary Request.
Notwithstanding the foregoing, each of Infinity, the Administrative Agent and
the Issuing Lender may, in its discretion, provide any notice, report or other
information to be provided under this Agreement to a Lender by (i) electronic
mail to the electronic mail address provided by such Lender in its
Administrative Questionnaire and/or (ii) through access to a web site. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on (A) the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or electronic
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mail, (B) the date of posting if given by web site access, (C) the date of such
telephone call, if permitted by the terms hereof and if promptly confirmed in
writing, or (D) on the date five Business Days after dispatch by registered mail
if mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 9.1 or in accordance with the latest unrevoked
direction from such party given in accordance with this Section 9.1.
SECTION 9.2. Survival of Agreement. All representations and
warranties made hereunder and in any certificate delivered pursuant hereto or in
connection herewith shall be considered to have been relied upon by the Agents
and the Lenders and shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder, regardless
of any investigation made by the Agents or the Lenders or on their behalf.
SECTION 9.3. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of each Borrower, each Agent and each Lender and
their respective successors and assigns, except that Infinity shall not have the
right to assign its rights or obligations hereunder or any interest herein
without the prior consent of all the Lenders.
SECTION 9.4. Successors and Assigns. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party, and all covenants,
promises and agreements by or on behalf of each Borrower, any Agent or any
Lender that are contained in this Agreement shall bind and inure to the benefit
of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment or Swingline Commitment and the Loans at the
time owing to it); provided, however, that (i) except in the case of an
assignment to a Lender or an affiliate of such Lender (other than if at the time
of such assignment, such Lender or affiliate would be entitled to require any
Borrower to pay greater amounts under Section 2.20(a) than if no such assignment
had occurred, in which case such assignment shall be subject to the consent
requirement of this clause (i)), Infinity and the Administrative Agent must give
their prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) (x) except in the case of assignments to any Person
that is a Lender prior to giving effect to such assignment, the amount of the
aggregate Commitments and/or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $10,000,000 and (y) the amount of the aggregate Commitments and/or Loans
retained by any assigning Lender (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $10,000,000, unless (in the case of clause (x) or
(y) above) the assigning Lender's Commitment and Loans (other than any
Competitive Loans) are being reduced to $0 pursuant to such assignment, (iii)
the assignor and assignee shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, together with a processing and recordation fee of
$3,500 and (iv) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to Section 9.4(e), from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five Business Days after the execution thereof (or any lesser period to
which the Administrative Agent and Infinity may agree), (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this
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Agreement, such Lender shall cease to be a party hereto (but shall continue to
be entitled to the benefits of Sections 2.15, 2.16, 2.20 and 9.5, as well as to
any Fees accrued for its account hereunder and not yet paid)). Notwithstanding
the foregoing, any Lender or Issuing Lender assigning its rights and obligations
under this Agreement may maintain any Competitive Loans or Letters of Credit
made or issued by it outstanding at such time, and in such case shall retain its
rights hereunder in respect of any Loans or Letters of Credit so maintained
until such Loans or Letters of Credit have been repaid or terminated in
accordance with this Agreement.
(b) 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.
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(f) Each Lender may without the consent of any Borrower or the
Agents sell participations to one or more banks, other financial institutions or
other entities (provided, that any such other entity is a not a competitor of
Infinity or any Affiliate of Infinity) all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitments
and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (ii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.15, 2.16 and 2.20 to the same extent as if they were Lenders (provided, that
additional amounts payable to any Lender pursuant to Section 2.20 shall be
determined as if such Lender had not sold any such participations) and (iv) the
Borrowers, the Agents and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of each Borrower relating to the Loans and the Letters
of Credit and to approve any amendment, modification or waiver of any provision
of this Agreement (other than amendments, modifications or waivers decreasing
any fees payable hereunder or the amount of principal of or the rate at which
interest is payable on the Loans or LC Disbursements, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans or
LC Disbursements or of LC Fees or Commitment Fees, increasing the amount of or
extending the Commitments or releasing the guarantee contained in Article VIII,
in each case to the extent the relevant participant is directly affected
thereby).
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 9.4, disclose to the assignee or participant or proposed assignee
or participant any information relating to any Borrower furnished to such Lender
by or on behalf of such Borrower; provided, that, prior to any such disclosure
of information designated by such Borrower as confidential, each such assignee
or participant or proposed assignee or participant shall execute a
Confidentiality Agreement whereby such assignee or participant shall agree
(subject to the exceptions set forth therein) to preserve the confidentiality of
such confidential information. A copy of each such Confidentiality Agreement
executed by an assignee shall be promptly furnished to Infinity. It is
understood that confidential information relating to the Borrowers would not
ordinarily be provided in connection with assignments or participations of
Competitive Loans.
(h) Notwithstanding the limitations set forth in paragraph (b)
above, (i) any Lender may at any time assign or pledge all or any portion of its
rights under this Agreement to a Federal Reserve Bank and (ii) any Lender which
is a "fund" may at any time assign or pledge all or any portion of its rights
under this Agreement to secure such Lender's indebtedness, in each case without
the prior written consent of any Borrower or the Administrative Agent; provided,
that each such assignment shall be made in accordance with applicable law and no
such assignment shall release a Lender from any of its obligations hereunder. In
order to facilitate any such assignment, each Borrower shall, at the request of
the assigning Lender, duly execute and deliver to the assigning Lender a
registered promissory note or notes evidencing the Loans made to such Borrower
by the assigning Lender hereunder.
(i) Notwithstanding anything to the contrary contained herein,
any Bank (a "Granting Bank") may grant to a special purpose funding vehicle (a
"SPC"), identified as such in writing from time to time by the Granting Bank to
the Administrative Agent and the Borrower, the option to provide to the Borrower
all or any part of any Loan that such Granting Bank would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided, that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan, and (ii) if an
SPC elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Bank shall be obligated to make such Loan
pursuant to the terms hereof. The making of an Loan by an SPC hereunder shall
utilize the Commitment of the Granting Bank to the same extent, and as if, such
Loan were made by such Granting Bank. Each party
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hereto hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Bank). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPC, it
will not institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section,
any SPC may (i) with notice to, but without the prior written consent of, the
Borrower and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the Granting
Bank or to any financial institutions (consented to by the Borrower and
Administrative Agent ) providing liquidity and/or credit support to or for the
account of such SPC to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPC. This section may not
be amended without the written consent of any SPC which has been identified as
such by the Granting Bank to the Administrative Agent and the Borrower and which
then holds any Loan pursuant to this paragraph (i).
(j) Neither Infinity nor any Subsidiary Borrower shall assign
or delegate any of its rights or duties hereunder without the prior consent of
all the Lenders; provided, Infinity may assign or delegate any of its rights or
duties hereunder to any Subsidiary Borrower and any Subsidiary Borrower may
assign or delegate any of its rights or duties hereunder to Infinity or to any
other Subsidiary Borrower, in each case without the prior consent of the
Lenders.
SECTION 9.5. Expenses; Indemnity. (a) Infinity agrees to pay
all reasonable legal and other out-of-pocket expenses incurred by Chase
Securities Inc., in its capacity as a Lead Arranger, and by the Administrative
Agent and their respective Affiliates in connection with the preparation,
negotiation, execution and delivery of this Agreement or in connection with any
amendments, modifications or waivers of the provisions hereof (whether or not
the transactions hereby contemplated shall be consummated) or incurred by any
Agent, any Lender or any Issuing Lender in connection with the enforcement or
protection of the rights of the Agents, the Lenders or the Issuing Lenders under
this Agreement or in connection with the Loans made or the Letters of Credit
issued hereunder, including, without limitation, the reasonable fees, charges
and disbursements of Simpson Thacher & Bartlett, counsel for Chase Securities
Inc., in its capacity as a Lead Arranger, and the Administrative Agent, and, in
connection with any such enforcement or protection, the reasonable fees, charges
and disbursements of any other counsel for any Agent, Lender or Issuing Lender.
(b) Infinity agrees to indemnify and hold harmless each Agent,
each Lender, each Issuing Lender and each of their respective directors,
officers, employees, affiliates and agents (each, an "Indemnified Person")
against, and to reimburse each Indemnified Person, upon its demand, for, any
losses, claims, damages, liabilities or other expenses ("Losses"), to which such
Indemnified Person becomes subject insofar as such Losses arise out of or in any
way relate to or result from (i) the execution or delivery of this Agreement,
any Letter of Credit or any agreement or instrument contemplated hereby (and any
amendment hereto or thereto), the performance by the parties hereto or thereto
of their respective obligations hereunder or thereunder or the consummation of
the transactions contemplated hereby or thereby or (ii) the use (or proposed
use) of the proceeds of the Loans or other extensions of credit hereunder,
including, without limitation, Losses consisting of reasonable legal, settlement
or other expenses incurred in connection with investigating, defending or
participating in any legal proceeding relating to any of the foregoing (whether
or not such Indemnified Person is a party thereto); provided, that the foregoing
will not apply to any Losses to the extent they are found by a final decision of
a court
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of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnified Person. No Indemnified Person shall be liable for
any damages arising from the use by others of Information or other materials
obtained through electronic, telecommunications or other information
transmission systems (provided, that the foregoing will not apply to any Losses
to the extent they are found by a final decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Indemnified Person).
(c) The provisions of this Section 9.5 shall remain operative
and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf of any
Agent or Lender. All amounts under this Section 9.5 shall be payable on written
demand therefor.
SECTION 9.6. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Agent and each Lender is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Agent or Lender to or for the credit or the account of any Borrower
against any of and all the obligations of such Borrower now or hereafter
existing under this Agreement or the Administrative Agent Fee Letter held by
such Agent or Lender which shall be due and payable. The rights of each Agent
and each Lender under this Section 9.6 are in addition to other rights and
remedies (including other rights of setoff) which such Agent or Lender may have.
SECTION 9.7. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICTS OF LAW
PROVISIONS AND PRINCIPLES OF SUCH STATE.
SECTION 9.8. Waivers; Amendment. (a) No failure or delay of
any Agent, any Issuing Lender or any Lender in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Agents, the Issuing Lenders and the Lenders hereunder are cumulative and are
not exclusive of any rights or remedies which they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by any
Borrower from any such provision shall in any event be effective unless the same
shall be permitted by paragraph (b) below, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which given.
No notice or demand on any Borrower in any case shall entitle any Borrower to
any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement in writing entered
into by the Borrowers and the Required Lenders; provided, however, that no such
agreement shall , except pursuant to Section 2.13, reduce the amount or extend
the scheduled date of maturity of any Loan or of any installment thereof, or
reduce the stated amount of any LC Disbursement, interest or fee payable
hereunder or extend the scheduled date of any payment thereof or increase the
amount or extend the expiration date of any Commitment of any Lender, in each
case without the prior written consent of each Lender directly affected thereby;
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
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assignment or delegation by Infinity or any Subsidiary Borrower of any of its
rights and obligations under this Agreement (except (A) by Infinity to any
Subsidiary Borrower or (B) by any Subsidiary Borrower to Infinity or any other
Subsidiary Borrower), in each case without the prior written consent of all the
Lenders; or (iii) amend, modify or waive any provision of Article VII without
the prior written consent of each Agent affected thereby; provided, further that
no such agreement shall amend, modify or otherwise affect the rights or duties
of the Administrative Agent, the Swingline Lenders or the Issuing Lenders
hereunder in such capacity without the prior written consent of the
Administrative Agent, each Swingline Lender directly affected thereby or each
Issuing Lender directly affected thereby, as the case may be.
SECTION 9.9. Entire Agreement. This Agreement (together with
the Issuing Lender Agreements, the Subsidiary Borrower Designations and the
Subsidiary Borrower Requests) constitutes the entire contract between the
parties relative to the subject matter hereof. Any previous agreement among 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
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provided by law. Each Subsidiary Borrower designates and directs Infinity at its
offices at 40 West 52nd Street, New York, New York 10019, as its agent to
receive service of any and all process and documents on its behalf in any legal
action or proceeding referred to in this Section 9.14 in the State of New York
and agrees that service upon such agent shall constitute valid and effective
service upon such Subsidiary Borrower and that failure of Infinity to give any
notice of such service to any Subsidiary Borrower shall not affect or impair in
any way the validity of such service or of any judgment rendered in any action
or proceeding based thereon. Nothing in this Agreement shall affect any right
that any Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against any Borrower or its Properties in
the courts of any jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue 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.
<PAGE> 69
65
(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.
<PAGE> 70
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/ Farid Suleman
------------------------------------------------
Title: Executive Vice President and Chief Financial
Officer and Treasurer
THE CHASE MANHATTAN BANK, as Administrative Agent
and as a Lender
By: /s/ William E. Rottino
------------------------------------------------
Title: Vice President
------------------------------------------
<PAGE> 71
Signature Page to the
Five-Year Credit Agreement
BANK OF AMERICA, N.A., as Co-Syndication Agent
and as a Lender
By: /s/ Todd Shipley
-------------------------------------------
Title: Managing Director
<PAGE> 72
Signature Page to the
Five-Year Credit Agreement
FLEET NATIONAL BANK, as Co-Syndication Agent
and as a Lender
By: /s/ Laura Neenan
---------------------------------
Title: Assistant Vice President
<PAGE> 73
Signature Page to the
Five-Year Credit Agreement
THE BANK OF NEW YORK, as Documentation Agent
and as a Lender
By: /s/ John R. Ciulla
-------------------------------------
Title: Vice President
<PAGE> 74
Signature Page to the
Five-Year Credit Agreement
BARCLAYS BANK PLC, as a Lender
By: /s/ Daniele Iacovone
---------------------------------
Title: Director
<PAGE> 75
Signature Page to the
Five-Year Credit Agreement
CITIBANK, N.A., as a Lender
By: /s/ Elizabeth H. Minnella
-------------------------------
Title: Vice President
<PAGE> 76
Signature Page to the
Five-Year Credit Agreement
DEUTSCHE BANK A.G., NEW YORK BRANCH
and/or Cayman Islands Branch, as a Lender
By: /s/ William McGinty
---------------------------
Title: Director
By: /s/ Irene Egues
---------------------------
Title: Vice President
<PAGE> 77
Signature Page to the
Five-Year Credit Agreement
THE INDUSTRIAL BANK OF JAPAN, LIMITED, as a
Lender
By: /s/ William Kennedy
-------------------------------
Title: Senior Vice President
<PAGE> 78
Signature Page to the
Five-Year Credit Agreement
MELLON BANK, N.A., as a Lender
By: /s/ Raghunatha Reddy
------------------------------
Title: Lending Officer
<PAGE> 79
Signature Page to the
Five-Year Credit Agreement
MERRILL LYNCH, as a Lender
By: /s/ Raymond J. Dardano
---------------------------------
Title: Senior Credit Officer
<PAGE> 80
Signature Page to the
Five-Year Credit Agreement
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH, as a Lender
By: /s/ Lucie L. Guemsey
----------------------------------
Title: Director
By: /s/ Pascal Kabemba
----------------------------------
Title: Associate Director
<PAGE> 81
Signature Page to the
Five-Year Credit Agreement
LEHMAN COMMERCIAL PAPER INC., as a Lender
By: /s/ Jeffrey Goodwin
----------------------------------
Title: Authorized Signatory
<PAGE> 82
Signature Page to the
Five-Year Credit Agreement
THE SANWA BANK, LIMITED, as a Lender
By: /s/ Jean-Michel Fatovic
------------------------------
Title: Vice President
<PAGE> 83
Signature Page to the
Five-Year Credit Agreement
THE SUMITOMO BANK, LIMITED, as a Lender
By: /s/ C. Michael Garrido
--------------------------------
Title: Senior Vice President
<PAGE> 84
Signature Page to the
Five-Year Credit Agreement
BANK ONE, N.A., as a Lender
By: /s/ Lynne M. Sanders
----------------------------------
Title: Assistant Vice President
<PAGE> 85
Signature Page to the
Five-Year Credit Agreement
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ Kristin Leori
----------------------------------
Title: Associate
By: /s/ Thomas G. Muoio
----------------------------------
Title: Vice President
<PAGE> 86
Signature Page to the
Five-Year Credit Agreement
THE NORINCHUKIN BANK, LTD., as a Lender
By: /s/ Yoshiro Niiro
----------------------------------
Title: General Manager
<PAGE> 87
Signature Page to the
Five-Year Credit Agreement
WACHOVIA BANK, N.A., as a Lender
By: /s/ Timothy Toler
----------------------------------
Title: Senior Vice President
<PAGE> 88
Signature Page to the
Five-Year Credit Agreement
___________________________________________,
as a Lender
By:__________________________________
Name:
Title:
<PAGE> 89
ANNEX I TO
CREDIT AGREEMENT
PRICING GRID
The Applicable Eurodollar Margin, the Applicable LC Commission
Rate and the Applicable Commitment Fee Rate shall be determined in accordance
with this Pricing Grid based upon the Debt Ratings established by the Rating
Agencies; provided, that in the event that the Debt Ratings shall correspond to
different Categories, the lower-numbered Category (with Category 1 being the
lowest-numbered Category) shall apply.
<TABLE>
<CAPTION>
==============================================================================================================================
Applicable Applicable Applicable Applicable Applicable
Eurodollar Financial Non-Financial Commitment Utilization
Category Debt Rating Margin LC Fee Rate LC Fee Rate Fee Rate Fee Rate
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
S&P Moody's
- ------------------------------------------------------------------------------------------------------------------------------
1 A or higher A2 or higher 0.225% 0.225% 0.100% 0.070% 0.250%
- ------------------------------------------------------------------------------------------------------------------------------
2 A- A3 0.250% 0.250% 0.125% 0.085% 0.250%
- ------------------------------------------------------------------------------------------------------------------------------
3 BBB+ Baa1 0.300% 0.300% 0.150% 0.110% 0.250%
- ------------------------------------------------------------------------------------------------------------------------------
4 BBB Baa2 0.375% 0.375% 0.1875% 0.125% 0.250%
- ------------------------------------------------------------------------------------------------------------------------------
5 BBB- Baa3 0.450% 0.450% 0.225% 0.175% 0.250%
- ------------------------------------------------------------------------------------------------------------------------------
6 BB+ or below Ba1 or below 0.625% 0.625% 0.3125% 0.250% 0.250%
==============================================================================================================================
</TABLE>
For the purposes of determinations pursuant to this Pricing
Grid, (a) if either Rating Agency shall not have in effect a Debt Rating (other
than because such Rating Agency shall no longer be in the business of rating
corporate debt obligations), then such Rating Agency will be deemed to have
established a Debt Rating of below BBB- or below Baa3, as applicable; (b) if any
rating established or deemed to have been established by either Rating Agency
shall be changed (other than as a result of a change in the rating system of
such Rating Agency), such change shall be effective as of the date on which it
is first announced by such Rating Agency; (c) any change in the Applicable
Eurodollar Margin, the Applicable Financial LC Fee Rate, the Applicable
Non-Financial LC Fee Rate or the Applicable Commitment Fee Rate resulting from a
change in the Debt Rating shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change; and (d) if the rating system of either
Rating Agency shall change, or if either Rating Agency shall cease to be in the
business of rating corporate debt obligations, amendments shall be negotiated in
good faith (and shall be effective upon approval by Infinity and the Required
Lenders) to the references to specific ratings in this Pricing Grid to reflect
such changed rating system or the unavailability of ratings from such Rating
Agency.
<PAGE> 1
Exhibit 10.6
EXECUTION COPY
- --------------------------------------------------------------------------------
$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
- --------------------------------------------------------------------------------
CHASE SECURITIES INC. and FLEETBOSTON ROBERTSON STEPHENS INC.,
as Joint Lead Arrangers and Joint Book Managers
BANK OF AMERICA, N.A. and BANK OF NEW YORK,
as Arrangers
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
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
SECTION 3.12. No Material Misstatements.................................................................27
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C>
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
SECTION 9.3. Binding Effect............................................................................43
SECTION 9.4. Successors and Assigns....................................................................43
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
Page
<S> <C>
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.........................................................................................................
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........................................................................................................
Schedule 1.1 Commitments; Addresses for Notices......................................................
Schedule 3.11 Material Subsidiaries...................................................................
Schedule 5.5(m) Certain Infinity Assets.................................................................
</TABLE>
-iii-
<PAGE> 5
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).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A hereto.
<PAGE> 6
2
"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.
"Applicable Utilization Fee Rate" shall mean the "Applicable
Utilization Fee Rate" determined in accordance with the Pricing Grid set forth
in Annex I hereto.
<PAGE> 7
3
"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.
"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.
<PAGE> 8
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).
"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.
<PAGE> 9
5
"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 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.
<PAGE> 10
6
"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_%, (b) which is after the 91st day
of such period and (c) on which the Commitment Utilization Percentage exceeds
33_%.
"Excluded Indebtedness" shall mean (a) Indebtedness of any
Person which is acquired by Infinity or any of its Subsidiaries after the
Original Closing Date, which Indebtedness was outstanding prior to the date of
acquisition of such Person and was not created in anticipation thereof, (b) any
Indebtedness owing by Infinity or any of its Subsidiaries to Infinity or any of
its Subsidiaries (including any intercompany Indebtedness created by the
declaration of a note payable dividend by any Subsidiary to Infinity or any of
its other Subsidiaries) and (c) Specified Section 5.5(n) Indebtedness.
"Existing CBS Credit Agreement"shall mean the Amended and
Restated Credit Agreement, dated as of December 10, 1999, as amended, modified
or supplemented from time to time, among CBS, as borrower, and Morgan 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.
<PAGE> 11
7
"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 Morgan
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 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
<PAGE> 12
8
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.
"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
<PAGE> 13
9
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 Robertson Stephens 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.
"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 Moody's 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.
<PAGE> 14
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"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.
"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).
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11
"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 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.
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"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.
"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.
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"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.
(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),
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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.
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
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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 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
<PAGE> 20
16
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 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
<PAGE> 21
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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
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).
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18
(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 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;
<PAGE> 23
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(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 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.
<PAGE> 24
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(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 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,
<PAGE> 25
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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 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).
<PAGE> 26
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(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.
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
<PAGE> 27
23
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, 270 Park Avenue, New York, New York
10017, 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.
(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.
<PAGE> 28
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(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
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
<PAGE> 29
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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).
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.
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26
(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 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).
<PAGE> 31
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SECTION 3.6. Approvals. No authorizations, approvals or
consents of, and no filings or registrations with, any Governmental Authority
are necessary for the execution, delivery or performance by each Borrower of
this Agreement or for the validity or enforceability hereof.
SECTION 3.7. ERISA. Infinity and, to the best of its
knowledge, its ERISA Affiliates have fulfilled their respective obligations
under the minimum funding standards of ERISA and the Code with respect to each
Plan and are in compliance in all material respects with the currently
applicable provisions of ERISA and the Code except where any failure or
non-compliance would not result in a Material Adverse Effect.
SECTION 3.8. Taxes. As of the Closing Date, United States
Federal income tax returns of or including Infinity and its Material
Subsidiaries have been, to the knowledge of Infinity, examined and closed
through the fiscal year of Infinity ended December 31, 1993. Infinity and its
Material Subsidiaries, to the knowledge of Infinity, have filed all United
States Federal income tax returns and all other material tax returns which are
required to be filed by or in respect of them and have paid or caused to be paid
all taxes shown as due on such returns or pursuant to any assessment received by
Infinity or any of its Material Subsidiaries, except those being contested and
reserved against in accordance with Section 5.2.
SECTION 3.9. Investment Company Act. No Borrower is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
SECTION 3.10. Hazardous Materials. Except as, in the
aggregate, would not have a Material Adverse Effect, neither Infinity nor any of
its Subsidiaries has received any notice of violation, alleged violation,
non-compliance or liability regarding environmental matters or compliance with
Environmental Laws with regard to any of its or its Subsidiaries' Properties or
business, nor does Infinity have any knowledge that any notice will be received
or is being threatened.
SECTION 3.11. Material Subsidiaries. Set forth in Schedule
3.11 is a complete and correct list, as of the Closing Date, of all Material
Subsidiaries.
SECTION 3.12. No Material Misstatements. No written
information, report, financial statement, exhibit or schedule (the
"Information") furnished by or on behalf of Infinity to the Administrative Agent
or any Lender in connection with the syndication of the Commitments or the
negotiation of this Agreement or included in this Agreement or delivered
pursuant hereto contained as of the time it was furnished any material
misstatement of fact or omitted as of such time to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were, are or will be made, not misleading; provided, that with
respect to Information consisting of statements, estimates and projections
regarding the future performance of Infinity and its respective Subsidiaries
("Projections"), no representation or warranty is made other than that such
Projections have been prepared in good faith utilizing due and careful
consideration and the best information available to Infinity at the time of
preparation thereof.
SECTION 3.13. Ownership of Property. Each of Infinity and
each of its Material Subsidiaries has good record and marketable title in fee
simple to, or a valid leasehold interest in, all its real property, and good
title to, or a valid leasehold interest in, all its other Property, except to
the extent that the failure to have such title would not result in a Material
Adverse Effect.
<PAGE> 32
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SECTION 3.14. Intellectual Property. Each of Infinity and
each of its Material Subsidiaries maintains, and is in compliance in all
material respects with, appropriate policies and procedures for establishing and
protecting their respective rights in Intellectual Property. Except as, in the
aggregate, would not result in a Material Adverse Effect, (a) each of Infinity
and each of its Material Subsidiaries owns, or is licensed to use, all
Intellectual Property necessary for the conduct of their respective businesses;
(b) no claim has been asserted and is pending by any Person challenging or
questioning the use of any Intellectual Property or the validity or
effectiveness of any Intellectual Property, nor does Infinity know of any valid
basis for any such claim; and (c) to the best knowledge of Infinity, the use of
the Intellectual Property by Infinity and its Material Subsidiaries does not
infringe on the rights of any Person.
SECTION 3.15. FCC Matters. Except as, in the aggregate,
would not result in a Material Adverse Effect: (a) Infinity and each of its
Material Subsidiaries have all the FCC Licenses necessary for the conduct of
their respective businesses; (b) Infinity and each of its Material Subsidiaries
are in substantial compliance with the Communications Act and with the rules and
regulations thereunder; (c) neither Infinity nor any of its Material
Subsidiaries is a party to, or has any knowledge of, any pending investigation,
notice of violation, order or complaint issued with respect to it by or before
the FCC; and (d) Infinity and its Material Subsidiaries have no reason to
believe that any FCC License will not be renewed in the ordinary course of
business.
ARTICLE IV.
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 4.1. Effectiveness. The effectiveness of this
Agreement is subject to the satisfaction of the following conditions (the date
on which all of such conditions shall have been satisfied, the "Closing Date"):
(a) Credit Agreement. The Administrative Agent shall have
received this Agreement, executed and delivered by a duly authorized
officer of Infinity.
(b) Closing Certificate. The Administrative Agent shall have
received a Closing Certificate, substantially in the form of Exhibit E,
of Infinity, with appropriate insertions and attachments.
(c) 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
<PAGE> 33
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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;
(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
<PAGE> 34
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such period, and the related consolidated balance sheet as at the end
of such period, setting forth in each case in comparative form the
corresponding consolidated figures for the corresponding period in the
preceding fiscal year, accompanied by a certificate of a Financial
Officer of Infinity which certificate shall state that such financial
statements fairly present the consolidated financial condition and
results of operations of Infinity and its Consolidated Subsidiaries in
accordance with GAAP as at the end of, and for, such period, subject to
normal year-end audit adjustments; provided, that the requirement
herein for the furnishing of such quarterly financial statements may be
fulfilled by providing to the Lenders the report of Infinity to the SEC
on Form 10-Q for the applicable quarterly period, accompanied by the
officer's certificate described in the last sentence of this Section
5.1;
(b) within 105 days after the end of each fiscal year of
Infinity, consolidated statements of income and cash flows of Infinity
and its Consolidated Subsidiaries for such year and the related
consolidated balance sheet as at the end of such year, setting forth in
comparative form the corresponding consolidated figures for the
preceding fiscal year, and accompanied by an opinion thereon
(unqualified as to the scope of the audit) of independent certified
public accountants of recognized national standing, which opinion shall
state that such consolidated financial statements fairly present the
consolidated financial condition and results of operations of Infinity
and its Consolidated Subsidiaries as at the end of, and for, such
fiscal year; provided, that the requirement herein for the furnishing
of annual financial statements may be fulfilled by providing to the
Lenders the report of Infinity to the SEC on Form 10-K for the
applicable fiscal year;
(c) promptly upon their becoming publicly available, copies of
all registration statements and regular periodic reports (including
without limitation any and all reports on Form 8-K), if any, which
Infinity or any of its Subsidiaries shall have filed with the SEC or
any national securities exchange;
(d) promptly upon the mailing thereof to the shareholders of
Infinity generally, copies of all financial statements, reports and
proxy statements so mailed;
(e) within 30 days after a Responsible Officer of Infinity
knows or has reason to believe that any of the events or conditions
specified below with respect to any Plan or Multiemployer Plan have
occurred or exist which would reasonably be expected to result in a
Material Adverse Effect, a statement signed by a senior financial
officer of Infinity setting forth details respecting such event or
condition and the action, if any, which Infinity or its ERISA Affiliate
proposes to take with respect thereto (and a copy of any report or
notice required to be filed with or given to PBGC by Infinity or an
ERISA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in Section
4043(b) of ERISA and the regulations issued thereunder, with
respect to a Plan, as to which PBGC has not by regulation
waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event;
provided, that a failure to meet the minimum funding standard
of Section 412 of the Code or Section 302 of ERISA shall be a
reportable event regardless of the issuance of any waiver in
accordance with Section 412(d) of the Code;
(ii) the filing under Section 4041 of ERISA of a
notice of intent to terminate any Plan or the termination of
any Plan;
<PAGE> 35
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(iii) the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by Infinity or any ERISA Affiliate of a notice from a
Multiemployer Plan that such action has been taken by PBGC
with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal by Infinity
or any ERISA Affiliate under Section 4201 or 4204 of ERISA
from a Multiemployer Plan, or the receipt by Infinity or any
ERISA Affiliate of notice from a Multiemployer Plan that it is
in reorganization or insolvency pursuant to Section 4241 or
4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against Infinity or any ERISA Affiliate
to enforce Section 515 of ERISA, which proceeding is not
dismissed within 30 days; and
(vi) a failure to make a required installment or
other payment with respect to a Plan (within the meaning of
Section 412(n) of the Code), in which case the notice required
hereunder shall be provided within 10 days after the due date
for filing notice of such failure with the PBGC;
(f) promptly after a Responsible Officer of Infinity knows or
has reason to believe that any Default or Event of Default has
occurred, a notice of such Default or Event of Default describing it
in reasonable detail and, together with such notice or as soon
thereafter as possible, a description of the action that Infinity
has taken and proposes to take with respect thereto;
(g) promptly after a Responsible Officer of Infinity knows
that any change has occurred in Infinity's Debt Rating by either Rating
Agency, a notice describing such change; and
(h) promptly from time to time such other information
regarding the financial condition, operations or business of Infinity
or any of its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required to be
filed under ERISA) as any Lender through the Administrative Agent may
reasonably request.
Infinity will furnish to the Administrative Agent and each Lender, at the time
it furnishes each set of financial statements pursuant to paragraph (a) or (b)
above, a certificate (which may be a copy in the case of each Lender) of a
Financial Officer of Infinity (a "Compliance Certificate") (i) to the effect
that no Default or Event of Default has occurred and is continuing (or, if any
Default or Event of Default has occurred and is continuing, describing it in
reasonable detail and describing the action that Infinity has taken and proposes
to take with respect thereto), and (ii) setting forth in reasonable detail the
computations (including any pro forma calculations as described in Section
1.2(c)) necessary to determine whether Infinity is in compliance with the
Financial Covenants as of the end of the respective quarterly fiscal period or
fiscal year. Each Lender hereby agrees that Infinity may, in its discretion,
provide any notice, report or other information to be provided pursuant to this
Section 5.1 to such Lender by (i) electronic mail to the electronic mail address
provided by such Lender and/or (ii) through access to a web site.
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
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or maintain any such right, privilege or franchise if the Board of Directors of
Infinity or such Material Subsidiary, as the case may be, shall determine that
the preservation or maintenance thereof is no longer desirable in the conduct of
the business of Infinity or such Material Subsidiary, as the case may be);
comply with the requirements of all applicable laws, rules, regulations and
orders of Governmental Authorities (including, without limitation, all
Environmental Laws) and with all contractual obligations if failure to comply
with such requirements or obligations would reasonably be expected to result in
a Material Adverse Effect; pay and discharge all material taxes, assessments,
governmental charges, levies or other obligations of whatever nature imposed on
it or on its income or profits or on any of its Property prior to the date on
which penalties attach thereto, except for any such tax, assessment, charge,
levy or other obligation the payment of which is being contested in good faith
and by proper proceedings and against which adequate reserves are being
maintained; maintain all its Property used or useful in its business in good
working order and condition, ordinary wear and tear excepted, all as in the
judgment of Infinity or such Material Subsidiary may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times (provided that Infinity or such Material Subsidiary shall
not be required to maintain any such Property if the failure to maintain any
such Property is, in the judgment of Infinity or such Material Subsidiary,
desirable in the conduct of the business of Infinity or such Material
Subsidiary); keep proper books of records and accounts in which entries that are
full, true and correct in all material respects shall be made in conformity with
GAAP; and permit representatives of any Lender, during normal business hours
upon reasonable advance notice, to inspect any of its books and records and to
discuss its business and affairs with its Financial Officers or their designees,
all to the extent reasonably requested by such Lender.
SECTION 5.3. Insurance. Infinity will, and will cause each of
its Material Subsidiaries to, keep insured by financially sound and reputable
insurers all Property of a character usually insured by corporations engaged in
the same or similar business and similarly situated against loss or damage of
the kinds and in the amounts consistent with prudent business practice and carry
such other insurance as is consistent with prudent business practice (it being
understood that self-insurance shall be permitted to the extent consistent with
prudent business practice).
SECTION 5.4. Prohibition of Fundamental Changes. Infinity will
not, and will not permit any of its Material Subsidiaries to (i) enter into any
transaction of merger, consolidation, liquidation or dissolution or (ii) Dispose
of, in one transaction or a series of related transactions, all or a substantial
part (determined by reference to Infinity and its Subsidiaries taken as a whole)
of its business or Property, whether now owned or hereafter acquired (excluding
(x) financings by way of sales of receivables or inventory, (y) inventory or
other Property Disposed of in the ordinary course of business and (z) obsolete
or worn-out Property, tools or equipments no longer used or useful in its
business). Notwithstanding the foregoing provisions of this Section 5.4:
(a) any Subsidiary of Infinity may be merged or consolidated
with or into: (i) Infinity if Infinity shall be the continuing or
surviving corporation or (ii) any other such Subsidiary; provided, that
(x) if any such transaction shall be between a Subsidiary and a Wholly
Owned Subsidiary, such Wholly Owned Subsidiary shall be the continuing
or surviving corporation and (y) if any such transaction shall be
between a Subsidiary and a Subsidiary Borrower, the continuing or
surviving corporation shall be a Subsidiary Borrower;
(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;
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(c) Infinity may merge or consolidate with or into any other
Person if (i) either (x) Infinity is the continuing or surviving
corporation or (y) the corporation formed by such consolidation or into
which Infinity is merged shall be a corporation organized under the
laws of the United States of America, any State thereof or the District
of Columbia and shall expressly assume the obligations of Infinity
hereunder pursuant to a written agreement and shall have delivered to
the Administrative Agent such agreement and a certificate of a
Responsible Officer and an opinion of counsel to the effect that such
merger or consolidation complies with this Section 5.4(c), and (ii)
after giving effect thereto and to any repayment of Loans to be made
upon consummation thereof (it being expressly understood that no
repayment of Loans is required solely by virtue thereof), no Default or
Event of Default shall have occurred and be continuing;
(d) any Subsidiary of Infinity may merge or consolidate with
or into any other Person if, after giving effect thereto and to any
repayment of Loans to be made upon the consummation thereof (it being
expressly understood that, except as otherwise expressly provided in
Section 4.2 with respect to Subsidiary Borrowers, no repayment of Loans
is required solely by virtue thereof), no Default or Event of Default
shall have occurred and be continuing; and
(e) Infinity or any Subsidiary of Infinity may Dispose of its
Property if, after giving effect thereto and to any repayment of Loans
to be made upon the consummation thereof (it being expressly understood
that, except as otherwise expressly provided in Section 4.2 with
respect to Subsidiary Borrowers, no repayment of Loans is required
solely by virtue thereof), no Default or Event of Default shall have
occurred and be continuing.
SECTION 5.5. Limitation on Liens. Infinity will not, and will
not permit any of its Material Subsidiaries to, create, incur, assume or suffer
to exist any Lien upon any of its Property, or enter into any Sale/Leaseback
with respect to any such Property, whether now owned or hereafter acquired;
provided, that the foregoing restrictions shall not apply to:
(a) Liens imposed by any Governmental Authority for taxes,
assessments or charges not yet due and payable or which are being
contested in good faith and by appropriate proceedings if adequate
reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, architects' or other like Liens arising in the ordinary
course of business which are not overdue for a period of more than 30
days or which are being contested in good faith and by appropriate
proceedings;
(c) Liens securing judgments or to perfect an appeal of any
order or decree but only to the extent, for an amount and for a period
not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(e) pledges or deposits to secure the performance of bids,
trade contracts (other than for borrowed money), leases, statutory
obligations to secure surety, appeal or performance bonds and
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,
<PAGE> 38
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licenses, restrictions on the use of Property or minor imperfections in
title thereto and Liens under leases and subleases which, in the
aggregate, are not material in amount, and which do not interfere in
any material respects with the ordinary conduct of the business of
Infinity and its Subsidiaries taken as a whole;
(g) Liens on Property of any Subsidiary of Infinity or of any
Person which is or was merged with or into Infinity or any Subsidiary
thereof; provided, that such Liens are or were in existence at the time
such Person becomes or became a Subsidiary of Infinity or such Person
merged with or into Infinity or any Subsidiary thereof, as the case may
be, were not created in anticipation thereof other than to finance the
purchase thereof and are not spread to cover any Property other than
the Property covered at the time of the relevant transaction;
(h) Liens upon real and/or personal property acquired (by
purchase, construction, foreclosure, deed in lieu of foreclosure or
otherwise) by Infinity or any of its Subsidiaries, each of which Liens
either (A) existed on such Property before the time of its acquisition
and was not created in anticipation thereof or (B) was created solely
for the purpose of securing Indebtedness representing, or incurred to
finance, refinance or refund, all or a part of the cost (including the
cost of construction) of such Property or improvements thereon;
provided, that no such Lien shall extend to or cover any Property of
Infinity or such Subsidiary other than the respective Property so
acquired and improvements thereon;
(i) mortgages on Property securing indebtedness in favor of
the United States of America or any state thereof or any department,
agency or instrumentality or political subdivision of the United States
of America or any state thereof, incurred for the purpose of financing
all or any part of the purchase price or the cost of construction of
the Property subject to such mortgages (including without limitation
such debt secured by such mortgages in connection with pollution
control, industrial revenue or similar financings) or incurred to
secure progress, advance or other payments pursuant to any contract or
provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any
Wholly Owned Subsidiary of Infinity;
(k) Liens (i) upon the receivables and inventory of Infinity
or any of its Subsidiaries to secure Indebtedness resulting from
financings of such receivables and inventory in an aggregate amount not
greater than $400,000,000 less the aggregate amount of Indebtedness
that is secured pursuant to clause (ii) below; provided, that the terms
of such Indebtedness do not provide for any recourse to Infinity or any
Material Subsidiary (except to the extent of breaches of
representations and warranties of Infinity or any of its Subsidiaries
in connection with such financings and other recourse customary in
connection with "off-balance sheet" financings) and (ii) upon the
Property of Infinity to secure Indebtedness of Infinity in an aggregate
amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing Date;
(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
<PAGE> 39
35
been assumed by Infinity or any of its Subsidiaries and where
the Lien relates to Property acquired by Infinity or any of its
Subsidiaries in satisfaction, in whole or in part, of indebtedness to
Infinity or any of its Subsidiaries, in the ordinary course of business
(any such Indebtedness, "Specified Section 5.5(n) Indebtedness")) and
(ii) the aggregate Sale/Leaseback Attributable Debt with respect to
such Sale/Leasebacks shall not exceed $125,000,000 at any one time
outstanding; and
(o) any extension, renewal or replacement of the foregoing;
provided, however, that, except to the extent otherwise permitted by
this Section 5.5 (including Section 5.5(n)), the Liens permitted under
this paragraph shall not be spread to cover any additional Indebtedness
or Property (other than a substitution of like Property or improvements
on such Property or other Property of equivalent value).
SECTION 5.6. Limitation on Subsidiary Indebtedness. Infinity
will not permit any of its Subsidiaries to create, incur, assume or suffer to
exist any Indebtedness (which includes, for the purposes of this Section 5.6,
any preferred stock), except (i) Excluded Indebtedness, (ii) Indebtedness of any
Subsidiary Borrower under this Agreement, (iii) Indebtedness incurred on any
date when, after giving effect thereto, the aggregate principal amount of
Indebtedness incurred pursuant to this clause (iii) that is outstanding on such
date (it being understood that, for the purposes of this clause (iii), the term
"Indebtedness" does not include borrowings under this Agreement or under the
Existing Credit Agreement or under the 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 Moody's 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 Moody's 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,
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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 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;
<PAGE> 41
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(f) Infinity or any of its Material Subsidiaries shall (i)
apply for or consent to the appointment of, or the taking of possession
by, a receiver, trustee or liquidator of itself or of all or a
substantial part of its Property, (ii) make a general assignment for
the benefit of its creditors, (iii) commence a voluntary case under the
Bankruptcy Code (as now or hereafter in effect), (iv) file a petition
seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or readjustment
of debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code, or (vi) take any corporate
action for the purpose of effecting any of the foregoing;
(g) a proceeding or a case shall be commenced, without the
application or consent of Infinity or any of its Material Subsidiaries,
in any court of competent jurisdiction, seeking (i) its liquidation,
reorganization, dissolution or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of Infinity or such Material
Subsidiary or of all or any substantial part of its assets or (iii)
similar relief in respect of Infinity or such Material Subsidiary under
any law relating to bankruptcy, insolvency, reorganization, winding-up,
or composition or adjustment of debts, and such proceeding or case
shall continue undismissed, or an order, judgment or decree approving
or ordering any of the foregoing shall be entered and continue unstayed
and in effect, for a period of 60 or more days; or an order for relief
against Infinity or such Material Subsidiary shall be entered in an
involuntary case under the Bankruptcy Code;
(h) a final judgment or judgments for the payment of money in
excess of $100,000,000 in the aggregate shall be rendered by one or
more courts, administrative tribunals or other bodies having
jurisdiction against Infinity and/or any of its Material Subsidiaries
and the same shall not be paid or discharged (or provision shall not be
made for such discharge), or a stay of execution thereof shall not be
procured, within 60 days from the date of the date of entry thereof and
Infinity or the relevant Material Subsidiary shall not, within said
period of 60 days, or such longer period during which execution of the
same shall have been stayed, appeal therefrom and cause the execution
thereof to be stayed during such appeal;
(i) an event or condition specified in Section 5.1(e) shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events
or conditions, Infinity or any ERISA Affiliate shall incur or in the
good faith opinion of the Required Lenders shall be reasonably likely
to incur a liability to a Plan, a Multiemployer Plan or PBGC (or any
combination of the foregoing) which would constitute, in the good faith
determination of the Required Lenders, a Material Adverse Effect;
(j) a Change of Control shall have occurred or, with respect
to any period of 25 consecutive calendar months (whether commencing
before or after the date of this Agreement, but not before December 31,
1999), individuals who were directors of Infinity on the first day of
such period or who were nominated by such directors (or by directors in
a direct chain of directors so 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;
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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.
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
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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 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,
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40
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.
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
<PAGE> 45
41
Obligations, nor shall Infinity seek or be entitled to seek any contribution,
reimbursement, exoneration or indemnity from or against any Subsidiary Borrower
in respect of payments made by Infinity hereunder, until all amounts owing to
the Administrative Agent and the Lenders by the Subsidiary Borrowers on account
of the Subsidiary Borrower Obligations are paid in full and the Commitments are
terminated. So long as the Subsidiary Borrower Obligations remain outstanding,
if any amount shall be paid by or on behalf of any Subsidiary Borrower or any
other Person to Infinity on account of any of the rights waived in this Section
8.2, such amount shall be held by Infinity in trust, segregated from other funds
of Infinity, and shall, forthwith upon receipt by Infinity, be turned over to
the Administrative Agent in the exact form received by Infinity (duly indorsed
by Infinity to the Administrative Agent, if required), to be applied against the
Subsidiary Borrower Obligations, whether matured or unmatured, in such order as
the Administrative Agent may determine.
SECTION 8.3. Amendments, etc. with respect to the
Subsidiary Borrower Obligations. Infinity shall remain obligated under this
Article VIII notwithstanding that, without any reservation of rights against
Infinity, and without notice to or further assent by Infinity, any demand for
payment of or reduction in the principal amount of any of the Subsidiary
Borrower Obligations made by the Administrative Agent or any Lender may be
rescinded by the Administrative Agent or such Lender, and any of the Subsidiary
Borrower Obligations continued, and the Subsidiary Borrower Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Administrative
Agent or any Lender, and this Agreement and any other documents executed and
delivered in connection herewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Required Lenders (or all Lenders, as the
case may be) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Administrative Agent or any
Lender for the payment of the Subsidiary Borrower Obligations may be sold,
exchanged, waived, surrendered or released. Neither the Administrative Agent nor
any Lender shall have any obligation to protect, secure, perfect or insure any
lien at any time held by it as security for the Subsidiary Borrower Obligations
or for the guarantee contained in this Article VIII or any property subject
thereto.
SECTION 8.4. Guarantee Absolute and Unconditional. Infinity
waives any and all notice of the creation, renewal, extension or accrual of any
of the Subsidiary Borrower Obligations and 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
<PAGE> 46
42
notice to or knowledge of Infinity or any Subsidiary Borrower) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of any Subsidiary Borrower for any of its Subsidiary Borrower
Obligations, or of Infinity under the guarantee contained in this Article VIII,
in bankruptcy or in any other instance. When the Administrative Agent or any
Lender is pursuing its rights and remedies under this Article VIII against
Infinity, the Administrative Agent or any Lender may, but shall be under no
obligation to, pursue such rights and remedies as it may have against any
Subsidiary Borrower or any other Person or against any collateral security or
guarantee for the Subsidiary Borrower Obligations or any right of offset with
respect thereto, and any failure by the Administrative Agent or any Lender to
pursue such other rights or remedies or to collect any payments from any
Subsidiary Borrower or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of any Subsidiary Borrower or any such other Person or of any such
collateral security, guarantee or right of offset, shall not relieve Infinity of
any liability under this Article VIII, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Administrative Agent and the Lenders against Infinity.
SECTION 8.5. Reinstatement. The guarantee contained in this
Article VIII shall continue to be effective, or be reinstated, as the case may
be, if at any time payment, or any part thereof, of any of the Subsidiary
Borrower Obligations is rescinded or must otherwise be restored or returned by
the Administrative Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any Subsidiary Borrower or upon or
as a result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, any Subsidiary Borrower or any substantial part
of its property, or otherwise, all as though such payments had not been made.
SECTION 8.6. Payments. Infinity hereby agrees that any
payments in respect of the Subsidiary Borrower Obligations pursuant to this
Article VIII will be paid to the Administrative Agent without setoff or
counterclaim in Dollars at the office of the Administrative Agent specified in
Section 9.1.
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, 40 West 52nd Street, New York, New York 10019, Attention
of Chief Financial Officer and Treasurer (Telecopy No. (212) 314-9336),
with a copy to General Counsel (Telecopy No. (212) 597-4031);
(b) if to the Administrative Agent, to it at The Chase
Manhattan Bank, 270 Park Avenue, New York, New York 10017, Attention:
William Rottino (Telecopy No. 212-270-1204), with a copy to The Chase
Manhattan Bank, One Chase Manhattan Plaza, New York, New York, 10080,
Attention: Camille Wilson (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
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43
(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 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
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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)).
(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
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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 (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
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provide all or any part of such Loan, the Granting Bank shall be obligated to
make such Loan pursuant to the terms hereof. The making of an Loan by an SPC
hereunder shall utilize the Commitment of the Granting Bank to the same extent,
and as if, such Loan were made by such Granting Bank. Each party hereto hereby
agrees that no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with the
Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees
(which agreement shall survive the termination of this Agreement) that, prior to
the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPC, it will
not institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section,
any SPC may (i) with notice to, but without the prior written consent of, the
Borrower and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the Granting
Bank or to any financial institutions (consented to by the Borrower and
Administrative Agent ) providing liquidity and/or credit support to or for the
account of such SPC to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, 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 Simpson Thacher & Bartlett, 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);
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provided, that the foregoing will not apply to any Losses to the extent they are
found by a final decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such Indemnified Person. No
indemnified person shall be liable for any damages arising from the use by
others of Information or other materials obtained through electronic,
telecommunications or other information transmission systems (provided, that the
foregoing will not apply to any Losses to the extent they are found by a final
decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Indemnified Person).
(c) The provisions of this Section 9.5 shall remain operative
and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf of any
Agent or Lender. All amounts under this Section 9.5 shall be payable on written
demand therefor.
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 (i), 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; (ii) amend, modify or waive any provision of this
Section 9.8(b), or reduce the percentage specified in the definition of
"Required Lenders", release the guarantee
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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 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 40
West 52nd
<PAGE> 53
49
Street, New York, New York 10019, as its agent to receive service of any and all
process and documents on its behalf in any legal action or proceeding referred
to in this Section 9.14 in the State of New York and agrees that service upon
such agent shall constitute valid and effective service upon such Subsidiary
Borrower and that failure of Infinity to give any notice of such service to any
Subsidiary Borrower shall not affect or impair in any way the validity of such
service or of any judgment rendered in any action or proceeding based thereon.
Nothing in this Agreement shall affect any right that any Agent or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
against any Borrower or its Properties in the courts of any jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue 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
<PAGE> 54
50
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.
<PAGE> 55
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/ Farid Suleman
------------------------------------------------
Title: Executive Vice President and Chief Financial
Officer and Treasurer
THE CHASE MANHATTAN BANK, as Administrative Agent
By: /s/ William E. Rottino
------------------------------------------------
Title: Vice President
------------------------------------------
<PAGE> 56
Signature Page to the
364-Day Credit Agreement
BANK OF AMERICA, N.A., as Co-Syndication Agent
and as a Lender
By: /s/ Todd Shipley
-------------------------------------------
Title: Managing Director
<PAGE> 57
Signature Page to the
364-Day Credit Agreement
FLEET NATIONAL BANK, as Co-Syndication Agent
and as a Lender
By: /s/ Laura Neenan
---------------------------------
Title: Assistant Vice President
<PAGE> 58
Signature Page to the
364-Day Credit Agreement
THE BANK OF NEW YORK, as Documentation Agent
and as a Lender
By: /s/ John R. Ciulla
-------------------------------------
Title: Vice President
<PAGE> 59
Signature Page to the
364-Day Credit Agreement
BARCLAYS BANK PLC, as a Lender
By: /s/ Daniele Iacovone
---------------------------------
Title: Director
<PAGE> 60
Signature Page to the
364-Day Credit Agreement
CITIBANK, N.A., as a Lender
By: /s/ Elizabeth H. Minnella
-------------------------------
Title: Vice President
<PAGE> 61
Signature Page to the
364-Day Credit Agreement
DEUTSCHE BANK A.G., NEW YORK BRANCH
and/or Cayman Islands Branch, as a Lender
By: /s/ William McGinty
---------------------------
Title: Director
By: /s/ Irene Egues
---------------------------
Title: Vice President
<PAGE> 62
Signature Page to the
364-Day Credit Agreement
THE INDUSTRIAL BANK OF JAPAN, LIMITED, as a
Lender
By: /s/ William Kennedy
-------------------------------
Title: Senior Vice President
<PAGE> 63
Signature Page to the
364-Day Credit Agreement
MELLON BANK, N.A., as a Lender
By: /s/ Raghunatha Reddy
------------------------------
Title: Lending Officer
<PAGE> 64
Signature Page to the
364-Day Credit Agreement
MERRILL LYNCH, as a Lender
By: /s/ Raymond J. Dardano
---------------------------------
Title: Senior Credit Officer
<PAGE> 65
Signature Page to the
364-Day Credit Agreement
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH, as a Lender
By: /s/ Lucie L. Guemsey
----------------------------------
Title: Director
By: /s/ Pascal Kabemba
----------------------------------
Title: Associate Director
<PAGE> 66
Signature Page to the
364-Day Credit Agreement
LEHMAN COMMERCIAL PAPER INC., as a Lender
By: /s/ Jeffrey Goodwin
----------------------------------
Title: Authorized Signatory
<PAGE> 67
Signature Page to the
364-Day Credit Agreement
THE SANWA BANK, LIMITED, as a Lender
By: /s/ Jean-Michel Fatovic
------------------------------
Title: Vice President
<PAGE> 68
Signature Page to the
364-Day Credit Agreement
THE SUMITOMO BANK, LIMITED, as a Lender
By: /s/ C. Michael Garrido
--------------------------------
Title: Senior Vice President
<PAGE> 69
Signature Page to the
364-Day Credit Agreement
BANK ONE, N.A., as a Lender
By: /s/ Lynne M. Sanders
----------------------------------
Title: Assistant Vice President
<PAGE> 70
Signature Page to the
364-Day Credit Agreement
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ Kristin Leori
----------------------------------
Title: Associate
By: /s/ Thomas G. Muoio
----------------------------------
Title: Vice President
<PAGE> 71
Signature Page to the
364-Day Credit Agreement
THE NORINCHUKIN BANK, LTD., as a Lender
By: /s/ Yoshiro Niiro
----------------------------------
Title: General Manager
<PAGE> 72
Signature Page to the
364-Day Credit Agreement
WACHOVIA BANK, N.A., as a Lender
By: /s/ Timothy Toler
----------------------------------
Title: Senior Vice President
<PAGE> 73
Signature Page to the
Five-Year Credit Agreement
___________________________________________,
as a Lender
By:__________________________________
Name:
Title:
<PAGE> 74
ANNEX I TO
CREDIT AGREEMENT
PRICING GRID
The Applicable Eurodollar Margin and the Applicable Commitment
Fee Rate shall be determined in accordance with this Pricing Grid based upon the
Debt Ratings established by the Rating Agencies; provided, that in the event
that the Debt Ratings shall correspond to different Categories, the
lower-numbered Category (with Category 1 being the lowest-numbered Category)
shall apply.
<TABLE>
<CAPTION>
==========================================================================================================
Applicable Applicable
Category Debt Rating Eurodollar Applicable Utilization
Margin Commitment Fee Rate Fee Rate
- ----------------------------------------------------------------------------------------------------------
S&P Moody's
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 A or higher A2 or higher 0.225% 0.050% 0.250%
- ----------------------------------------------------------------------------------------------------------
2 A- A3 0.250% 0.065% 0.250%
- ----------------------------------------------------------------------------------------------------------
3 BBB+ Baa1 0.300 % 0.090% 0.250%
- ----------------------------------------------------------------------------------------------------------
4 BBB Baa2 0.375% 0.100% 0.250%
- ----------------------------------------------------------------------------------------------------------
5 BBB- Baa3 0.450% 0.150% 0.250%
- ----------------------------------------------------------------------------------------------------------
6 BB+ or below Ba1 or below 0.625 % 0.200% 0.250%
==========================================================================================================
</TABLE>
For the purposes of determinations pursuant to this Pricing
Grid, (a) if either Rating Agency shall not have in effect a Debt Rating (other
than because such Rating Agency shall no longer be in the business of rating
corporate debt obligations), then such Rating Agency will be deemed to have
established a Debt Rating of below BBB- or below Baa3, as applicable; (b) if any
rating established or deemed to have been established by either Rating Agency
shall be changed (other than as a result of a change in the rating system of
such Rating Agency), such change shall be effective as of the date on which it
is first announced by such Rating Agency; (c) any change in the Applicable
Eurodollar Margin or the Applicable Commitment Fee Rate resulting from a change
in the Debt Rating shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change; and (d) if the rating system of either Rating
Agency shall change, or if either Rating Agency shall cease to be in the
business of rating corporate debt obligations, amendments shall be negotiated in
good faith (and shall be effective upon approval by Infinity and the Required
Lenders) to the references to specific ratings in this Pricing Grid to reflect
such changed rating system or the unavailability of ratings from such Rating
Agency.
<PAGE> 1
Exhibit 10.9
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (the "Agreement") is made as of the 1st day of
May, 1993, by and between Outdoor Systems, Inc., an Arizona corporation ("OSI"),
Williams Manufacturing, Inc., an Arizona corporation ("WMI") and J&L Industries,
an Arizona corporation ("J&L"). For purposes of this Agreement, the "OSI
Companies" shall mean OSI together with its existing future direct and indirect
subsidiaries (including, without limitation, OS Advertising Company of Texas,
Inc., OS Advertising Company of Georgia, Inc., OS Advertising Company of
Phoenix, Inc. and wholly owned subsidiaries thereof).
RECITALS
WHEREAS, WMI and J&L have from time to time provided to the OSI
Companies the services of William S. Levine, an individual residing in Phoenix,
Arizona and an owner and employee of WMI and J&L (the "Executive") to perform
certain services on behalf of the OSI Companies in connection with certain
business matters; and
WHEREAS, OSI wishes to obtain the continued management services of the
executive in connection with future activities and business of the OSI
Companies; and
WHEREAS, WMI and J&L agrees to enter into this Agreement to make the
services of the Executive available to the OSI Companies upon the terms and
conditions set forth below;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Services of Executive. WMI and J&L agree to provide to OSI
or to the OSI Companies at OSI's request the services (as described below, the
"Services") of the Executive to perform and discharge well and faithfully such
duties as may be assigned to the Executive from time to time by the Board of
Directors of OSI (including, without limitation, the duties of Chief Financial
Officer). The Executive shall provide the Services to OSI or to the OSI
Companies at OSI's request when and as needed and requested by the Board of
Directors of OSI. The Services shall include, without limitation:
a. strategic financial planning;
b. negotiating the terms of financing for OSI and supervising all
matters relating to OSI's financing sources (including both
debt and equity financing);
c. negotiating and consummating acquisitions or similar
transactions;
<PAGE> 2
d. consulting with other executive officers of OSI with respect
to financial matters, personnel, insurance, operational,
marketing and other matters;
e. and such other matters necessary or appropriate in the
judgment of the officers and directors of OSI to effectively
operate the business of OSI.
The Executive shall devote at least a majority of his business time to providing
the Services of OSI (it being anticipated that the total amount of time that the
Executive will devote to providing the Services during a particular year will
average approximately 20 hours per week). The Executive, J&L and WMI may, during
the period of the Executive's service on behalf of OSI, be employed or involved
in any other business activity, provided that such activities may not include
providing services to an entity which competes with OSI.
SECTION 3. Payment.
a. Monthly Fees. For Services rendered by the Executive under this
Agreement, OSI shall pay to WMI or J&L (as WMI and J&L shall direct from time to
time) a monthly fee of Twenty Thousand Eight Hundred Thirty-Three Dollars
($20,833) during the period from the date hereof until the date this Agreement
shall terminate (the "Monthly Payment"). The amount of the Monthly Payment shall
increase or decrease on each anniversary date of the date of this Agreement by
that percentage that equals the percent by which the consumer price index
increased (or decreased, as the case may be) during the one-year period ending
on such anniversary date. "Consumer price index" refers to the consumer price
index for the Phoenix standard metropolitan statistical area as published by the
United States Department of Labor, Bureau of Labor Statistics. The Monthly
Payment shall be paid on the last day of each month, or if such day is not a
Business Day, on the preceding Business Day. For purposes of this Agreement, a
"Business Day" is any day on which banks in Phoenix, Arizona are required to be
open for business.
b. Reimbursement of Costs. OSI agrees to pay miscellaneous costs,
charges or expenses incurred by WMI, J&L or the Executive in the ordinary course
of the Executive's performance of his duties pursuant to Section 1 above. Such
costs shall be reimbursed to WMI and J&L upon presentation of evidence of such
expenditures in reasonable detail.
c. Benefits. The Executive shall not have any claim against OSI for any
employee benefits (including vacation pay, sick leave, retirement benefits,
Social Security, workers' compensation, disability, health or unemployment
insurance benefits) except as provided above or as OSI may, in its sole
discretion, from time to time provide to the Executive. OSI shall not be
required to withhold taxes for the Executive.
SECTION 3. Terms of Agreement: Renewal. The term of this Agreement
shall begin on the date first written above and shall continue for a period of
one (1) year; provided, however, that following the expiration of the initial
one year term, the term of
<PAGE> 3
this Agreement shall be extended for successive one (1) year terms thereafter,
but may be terminated by either party at any time within sixty days prior
written notice. In addition, this Agreement may be terminated at any time by OSI
without prior notice in accordance with one of the following provisions:
a. For Cause. This Agreement may be terminated by OSI at any time for
Cause (as hereinafter defined). As used in this Agreement, "Cause" shall mean
any of the following events:
i. the Executive's commission or conviction of, or plea of
guilty or nolo contendere to, a felony (other than a felony
resulting from a traffic violation), a crime of falsehood, or
a crime involving moral turpitude, or the actual incarceration
of the Executive;
ii. the Executive's material failure to perform properly the
Executive's duties to OSI other than a failure resulting from
the Executive's incapacity because of physical or mental
illness;
iii. the Executive's commission of any act of misconduct that
damages the business or reputation of OSI.
If this Agreement is terminated under the provisions of this Section 3a, all
payments to WMI and J&L under this Agreement shall cease to accrue as of the
effective date of such termination.
b. Death. If the Executive dies, this Agreement shall be deemed to
terminate as of the date of the Executive's death and all payments to WMI and
J&L shall cease to accrue.
c. Disability or Unavailability. If the Executive becomes disabled and
is unable to perform his duties pursuant to this Agreement, this Agreement may
be terminated immediately upon giving WMI and J&L notice to that effect and all
payments shall cease to accrue; provided that in each case OSI shall pay to WMI
on the termination date an amount equal to twelve times the then current Monthly
Payment.
d. Termination of Employment. If the Executive ceases to be employed by
WMI and J&L or is unavailable or unwilling to perform his duties to OSI, this
Agreement shall cease as of the date of such termination, unavailability or
cessation of services and all payments to WMI and J&L shall case to accrue.
SECTION 4. General Liability. With regard to the Services to be
performed by WMI, J&L and the executive pursuant to the terms of this Agreement,
none of WMI, J&L or any of their respective officers, directors, employees or
agents (including without limitation the Executive) shall be liable to OSI or
any of its subsidiaries or affiliates for any acts or omission in the
performance of said services on the part of WMI or J&L or
<PAGE> 4
any of such directors, officers, employees or agents, except when said acts or
omissions of, or attributable to, WMI or J&L result from the fraud, bad faith or
gross negligence of WMI or J&L, or their respective directors, officers,
employees and agents. OSI agrees to and shall indemnify, protect, defend and
hold WMI and J&L (including their respective directors, officers, employees and
agents) free and harmless against any obligations, costs, claims, demands,
judgments, attorneys' fees, and attachments arising from or growing out of the
services rendered to OSI hereunder or in any way connected with the rendering of
such services, except when the same shall arise as a result of fraud, bad faith
or negligence of WMI or J&L (including their respective directors, officers,
employees and agents) as adjudged by a court of competent jurisdiction.
SECTION 5. Miscellaneous.
a. Governing Law. This Agreement shall be governed by the laws of the
State of Arizona.
b. Entire Agreement. This document constitutes the entire agreement of
the parties. Amendments and waivers may be made only with the written approval
of both parties.
c. Assignment. This Agreement shall not be assignable by either party,
except by OSI to any successor in interest of OSI (including, without
limitation, Outdoor Systems, Inc., a Delaware corporation into which OSI
proposes to merge). This Agreement shall be binding on, and inure to the benefit
of, OSI and its successors and assigns.
d. Notice. Any notice required or permitted under this Agreement shall
be sufficient if written and hand-delivered or sent by registered mail, return
receipt requested as follows:
If to WMI: Williams Manufacturing, Inc.
2810 W. Camelback Road
Phoenix, Arizona 85017
Attention: William S. Levine
If to J&L: J&L Industries, Inc.
2810 W. Camelback Road
Phoenix, Arizona 85017
Attention: William S. Levine
If to OSI: Outdoor Systems, Inc.
2502 N. Black Canyon Highway
Phoenix, Arizona 85009
Attention: Arte Moreno
<PAGE> 5
e. Severability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality or enforceability of
any of the remaining portions shall not be in any way affected or impaired
thereby.
f. Headings. The paragraph headings and captions of this Agreement are
for reference only, are not part of this Agreement, and they shall not be
construed as limiting or affecting any of the contents of this Agreement or its
paragraphs.
g. Counterpart Execution. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date above written.
OUTDOOR SYSTEMS, INC.
By: /s/ Arte Moreno
------------------------
Arte Moreno, President
WILLIAMS MANUFACTURING, INC.
By: /s/ William S. Levine
------------------------
William S. Levine, President
J&L INDUSTRIES, INC.
By: /s/ William S. Levine
------------------------
William S. Levine, President
ACKNOWLEDGED AND AGREED TO:
/s/ William S. Levine
-----------------------------------
William S. Levine
<PAGE> 6
AMENDMENT NO. 1 TO SERVICES AGREEMENT
THIS AMENDMENT NO. 1 TO SERVICES AGREEMENT (this "Amendment No. 1") is
entered into this 15th day of April, 1996 by and between Outdoor Systems, Inc.,
a Delaware corporation and successor by merger to Outdoor Systems, Inc., an
Arizona corporation ("OSI"), Williams Manufacturing, Inc., an Arizona
corporation ("WMI"), and J&L Industries, Inc., an Arizona corporation
("J&L");
WHEREAS, the parties hereto wish to amend certain provisions of that
certain Services Agreement (the "Agreement") dated as of May 1, 1993;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Amendment. Section 2(a) of the Agreement is hereby amended,
effective July 1, 1995, to read in its entirety as follows:
a. Monthly Fees. For services rendered by the Executive under
this Agreement, OSI shall pay to WMI or J&L (as WMI and J&L shall
direct from time to time) a monthly fee of Thirty-seven thousand five
hundred dollars ($37,500) during the period from July 1, 1995 until the
date this Agreement shall terminate (the "Monthly Payment"). The
Monthly Payment shall be paid on the last day of each month, or if such
day is not a Business Day, on the preceding Business Day. For purposes
of this Agreement, a "Business Day" is any day on which banks in
Phoenix, Arizona are required to be open for business.
2. Confirmation. All terms and provisions of the Agreement, as amended
by Section 1, are hereby ratified and confirmed.
3. Counterparts. This Amendment No. 1 may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original , but all such counterparts together shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 as
of the date above written.
<PAGE> 7
OUTDOOR SYSTEMS, INC.
By: /s/ Arte Moreno
------------------------
Arte Moreno, President
WILLIAMS MANUFACTURING, INC.
By: /s/ William S. Levine
------------------------
William S. Levine, President
J&L INDUSTRIES, INC.
By: /s/ William S. Levine
------------------------
William S. Levine, President
ACKNOWLEDGED AND AGREED TO:
/s/ William S. Levine
-----------------------------------
William S. Levine
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 3-MOS
<FISCAL-YEAR-END> DEC-31-2000 DEC-31-1999
<PERIOD-START> JAN-01-2000 JAN-01-1999
<PERIOD-END> MAR-31-2000 MAR-31-1999
<CASH> 89,861 626,675
<SECURITIES> 0 0
<RECEIVABLES> 702,672 433,780
<ALLOWANCES> 54,724 31,838
<INVENTORY> 0 0
<CURRENT-ASSETS> 1,096,720 1,111,434
<PP&E> 2,309,336 329,866
<DEPRECIATION> 149,598 80,131
<TOTAL-ASSETS> 19,176,936 10,813,132
<CURRENT-LIABILITIES> 434,945 318,734
<BONDS> 1,880,198 398,915
0 0
0 0
<COMMON> 11,130 8,553
<OTHER-SE> 15,540,123 8,897,134
<TOTAL-LIABILITY-AND-EQUITY> 19,176,936 10,813,132
<SALES> 788,584 473,735
<TOTAL-REVENUES> 788,584 473,735
<CGS> 460,927 303,579
<TOTAL-COSTS> 460,927 303,579
<OTHER-EXPENSES> 160,821 72,610
<LOSS-PROVISION> 8,521 5,002
<INTEREST-EXPENSE> 33,632 2,202
<INCOME-PRETAX> 131,889 95,287
<INCOME-TAX> 74,093 47,627
<INCOME-CONTINUING> 57,796 47,660
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 57,796 47,660
<EPS-BASIC> 0.05 0.06
<EPS-DILUTED> 0.05 0.06
</TABLE>
