FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
QUARTERLY REPORT UNDER SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For Quarter Ended September 30, 1996 Commission File Number 0-13020
WESTWOOD ONE, INC.
------------------
(Exact name of registrant as specified in its charter)
DELAWARE 95-3980449
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9540 WASHINGTON BLVD., CULVER CITY, CALIFORNIA 90232
----------------------------------------------------
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (310) 204-5000
Indicate by check mark 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
-- --
As of November 1, 1996, 30,323,990 shares of Common Stock, excluding 1,845,395
treasury shares, were outstanding and 351,733 shares of Class B Stock were
outstanding.
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WESTWOOD ONE, INC.
------------------
INDEX
-----
PART I. FINANCIAL INFORMATION: Page No.
--------
Consolidated Balance Sheets 3
Consolidated Statements of Operations 4
Consolidated Statements of Cash Flows 5
Notes to Consolidated Financial Statements 6
Management's Discussion and Analysis of
Financial Condition and Results of
Operations 7
PART II. OTHER INFORMATION 10
SIGNATURES 11
2
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<TABLE>
<CAPTION>
WESTWOOD ONE, INC.
CONSOLIDATED BALANCE SHEETS
(In thousands, except share amounts)
September 30, December 31,
1996 1995
---- ----
ASSETS
------
CURRENT ASSETS:
<S> <C> <C>
Cash and cash equivalents $ 4,232 $ 256
Accounts receivable, net of allowance for doubtful accounts 40,244 36,591
Other current assets 3,380 5,038
--------- ---------
Total Current Assets 47,856 41,885
PROPERTY AND EQUIPMENT, NET 15,764 15,632
INTANGIBLE ASSETS, NET 201,703 184,441
OTHER ASSETS 7,595 3,637
--------- ---------
TOTAL ASSETS $ 272,918 $ 245,595
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 17,819 $ 20,647
Accrued expenses and other liabilities 25,505 14,675
--------- ---------
Total Current Liabilities 43,324 35,322
LONG-TERM DEBT 130,443 107,943
OTHER LIABILITIES 6,440 8,207
--------- ---------
TOTAL LIABILITIES 180,207 151,472
--------- ---------
COMMITMENTS AND CONTINGENCIES -- --
SHAREHOLDERS' EQUITY
Preferred stock: authorized 10,000,000 shares, none outstanding -- --
Common stock, $.01 par value: authorized, 117,000,000 shares;
issued and outstanding, 31,817,652 (1996) and 31,507,027 (1995) 318 315
Class B stock, $.01 par value: authorized, 3,000,000 shares:
issued and outstanding, 351,733 (1996 and 1995) 4 4
Additional paid-in capital 158,458 157,547
Accumulated deficit (42,082) (54,899)
--------- ---------
116,698 102,967
Less treasury stock, at cost; 1,605,395 (1996) and 607,395 (1995) (23,987) (8,844)
--------- ---------
TOTAL SHAREHOLDERS' EQUITY 92,711 94,123
--------- ---------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 272,918 $ 245,595
========= =========
</TABLE>
See accompanying notes to consolidated financial statements.
3
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<TABLE>
<CAPTION>
WESTWOOD ONE, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
Three Months Ended Nine Months Ended
September 30, September 30,
------------- -------------
1996 1995 1996 1995
---- ---- ---- ----
<S> <C> <C> <C> <C>
GROSS REVENUES $ 55,267 $ 44,547 $ 147,085 $ 124,898
Less Agency Commissions 7,706 6,242 20,284 17,614
--------- --------- --------- ---------
NET REVENUES 47,561 38,305 126,801 107,284
--------- --------- --------- ---------
Operating Costs and Expenses Excluding
Depreciation and Amortization 34,138 26,959 93,798 79,669
Depreciation and Amortization 2,958 3,502 8,896 10,253
Corporate General and Administrative Expenses 1,509 1,393 4,273 4,128
--------- --------- --------- ---------
38,605 31,854 106,967 94,050
--------- --------- --------- ---------
OPERATING INCOME 8,956 6,451 19,834 13,234
Interest Expense 2,271 2,251 6,494 7,318
Other Income (81) (69) (207) (283)
--------- --------- --------- ---------
INCOME BEFORE INCOME TAXES 6,766 4,269 13,547 6,199
INCOME TAXES 301 170 730 357
--------- --------- --------- ---------
NET INCOME $ 6,465 $ 4,099 $ 12,817 $ 5,842
========= ========= ========= =========
NET INCOME PER SHARE $ .19 $ .12 $ .38 $ .17
========= ========= ========= =========
WEIGHTED AVERAGE SHARES OUTSTANDING 34,381 35,643 33,599 34,036
========= ========= ========= =========
</TABLE>
See accompanying notes to consolidated financial statements.
- 4 -
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<TABLE>
<CAPTION>
WESTWOOD ONE, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
Nine Months Ended
September 30,
-------------
1996 1995
---- ----
CASH FLOW FROM OPERATING ACTIVITIES:
<S> <C> <C>
Net income $ 12,817 $ 5,842
Adjustments to reconcile net income to net cash provided by operating
activities:
Depreciation and amortization 8,896 10,252
Other 292 (156)
Changes in assets and liabilities:
Decrease in accounts receivable 592 3,713
Decrease (Increase) in prepaid assets 436 (1,047)
(Decrease) in accounts payable and accrued liabilities (773) (1,560)
-------- --------
Net Cash Provided By Operating Activities 22,260 17,044
-------- --------
CASH FLOW FROM INVESTING ACTIVITIES:
Acquisition of companies (Shadow Traffic in 1996) (21,191) (646)
Capital expenditures (940) (748)
Other (4,424) (106)
-------- --------
Net Cash Used For Investing Activities (26,555) (1,500)
-------- --------
CASH PROVIDED (USED) BEFORE
FINANCING ACTIVITIES (4,295) 15,544
------- --------
CASH FLOW FROM FINANCING ACTIVITIES:
Debt repayments (1,250) (12,500)
Borrowings under debt arrangements 23,750 --
Issuance of common stock 914 3,405
Repurchase of common stock (15,143) (4,330)
-------- --------
NET CASH FROM (USED IN) FINANCING ACTIVITIES 8,271 (13,425)
------- --------
NET INCREASE IN CASH AND CASH EQUIVALENTS 3,976 2,119
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 256 2,439
------- --------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 4,232 $ 4,558
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
- 5 -
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WESTWOOD ONE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
------------------------------------------
(In thousands, except per share data)
NOTE 1 - Basis of Presentation:
- -------------------------------
The accompanying consolidated balance sheet as of September 30, 1996,
the consolidated statements of operations for the three and nine month periods
ended September 30, 1996 and 1995 and the consolidated statements of cash flows
for the nine months ended September 30, 1996 and 1995 are unaudited, but in the
opinion of management include all adjustments necessary for a fair presentation
of the financial position and the results of operations for the periods
presented.
These financial statements should be read in conjunction with the
Company's Annual Report on Form 10-K, filed with the Securities and Exchange
Commission.
NOTE 2 - Earnings Per Share:
- ----------------------------
Net income per share is computed based upon the weighted average
number of shares outstanding and Common Stock equivalents in periods where there
is net income. The number of shares used to compute earnings per share are
34,381 and 35,643 for the three month periods ended September 30, 1996 and 1995,
respectively and 33,599 and 34,036 for the nine month periods ended September
30, 1996 and 1995, respectively.
NOTE 3 - Debt:
- --------------
On September 30, 1996, the Company amended its bank revolving credit
facility (the "Facility"). The following summarizes the most significant changes
to the Facility:
The amount of the Facility was increased to $150,000 (comprised
of a $75,000 revolving credit commitment and a $75,000 term
loan),
The Facility is available until September 30, 2004,
No reductions in the Facility are required until September 30,
1999 and
The interest rate Applicable Margins were reduced (for prime rate
loans the Applicable Margin range is now between 0% and .25% and
for Eurodollar loans the Applicable Margin range is now between
.5% and 1.25%).
At September 30, 1996, the Company had outstanding borrowings under
the Facility of $115,000 and available borrowings of $35,000.
NOTE 4 - Acquisition of Shadow Traffic:
- ---------------------------------------
On March 1, 1996, the Company through its wholly-owned subsidiary
Westwood One Broadcasting Services Inc. acquired the operating assets of New
York Shadow Traffic Limited Partnership, Chicago Shadow Traffic Limited
Partnership, Los Angeles Shadow Traffic Limited Partnership and Philadelphia
Express Traffic Limited Partnership (collectively "Shadow Traffic") for $20,000
plus expenses, subject to an adjustment based on the future cash flow of Shadow
Traffic. The acquisition was accounted for as a purchase, and accordingly,
Shadow Traffic's operating results are included with those of the Company from
the date of acquisition. The purchase price has been allocated to the assets and
liabilities acquired based on preliminary estimates of their respective fair
values. The intangible assets acquired as part of the purchase are being
amortized over 15 years.
6
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
---------------------------------------------
(In thousands, except per share amounts)
On March 1, 1996 the Company acquired the operating assets of Shadow
Traffic. The acquisition was accounted for as a purchase and accordingly, Shadow
Traffic's operating results are included with those of the Company from the date
of acquisition.
RESULTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 1996 COMPARED
WITH THREE MONTHS ENDED SEPTEMBER 30, 1995
---------------------------------------------
Westwood One derives substantially all of its revenue from the sale
of advertising time to advertisers. Net revenue increased $9,256, or 24% to
$47,561 in the third quarter of 1996 from $38,305 in the comparable prior year
quarter. The increase in net revenue was primarily due to the acquisition of
Shadow Traffic and as a result of the Company's exclusive rights to the 1996
Summer Olympics.
Operating costs and expenses excluding depreciation and amortization
increased $7,179, or 27%, to $34,138 in the third quarter of 1996 from $26,959
in the third quarter of 1995. The increase was primarily attributable to the
acquisition of Shadow Traffic and the 1996 Summer Olympics, partially offset by
lower station compensation expenses.
Depreciation and amortization decreased 16% to $2,958 in the third
quarter of 1996 from $3,502 in the third quarter of 1995. The decrease is
principally attributable to lower amortization of programming costs and rights
due to lower capitalized balances, partially offset by higher depreciation and
amortization associated with the acquisition of Shadow Traffic.
Corporate general and administrative expenses increased 8% to $1,509
in 1996 from $1,393 in 1995. The increase is primarily attributable to higher
compensation expense.
Operating income increased $2,505, or 39%, to $8,956 in the third
quarter of 1996 from $6,451 in the third quarter of 1995. The improvement is
principally attributable to higher revenue and lower depreciation and
amortization.
Interest expense increased 1% to $2,271 in the third quarter of 1996
from $2,251 in the third quarter of 1995. The increase was principally
attributable to higher debt levels as a result of the acquisition of Shadow
Traffic, partially offset by lower interest rates.
Net income in the third quarter increased 58% to $6,465, or $.19 per
share, in 1996 from $4,099, or $.12 per share, in 1995. The weighted average
number of shares outstanding (including common stock equivalents) decreased 4%
to 34,381 in the third quarter of 1996 from 35,643 in the comparable 1995
quarter, due principally to the Company's stock repurchase program.
7
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NINE MONTHS ENDED SEPTEMBER 30, 1996 COMPARED
WITH NINE MONTHS ENDED SEPTEMBER 30, 1995
-------------------------------------------
Net revenue for the first nine months of 1996 increased 18% to
$126,801 in 1996 from $107,284 in the first nine months of 1995. The increase is
primarily attributable to the acquisition of Shadow Traffic, the Company's
exclusive rights to the 1996 Summer Olympics, and higher advertising rates for
the Company's programs.
Operating costs and expenses increased 18% to $93,798 in the first
nine months of 1996 from $79,669 in the comparable 1995 period. The increase was
primarily attributable to the acquisition of Shadow Traffic, and the 1996 Summer
Olympics, partially offset by lower station compensation expenses.
Depreciation and amortization decreased 13% to $8,896 in the first
nine months of 1996 from $10,253 in the first nine months of 1995. The decrease
is principally attributable to lower amortization of programming costs and
rights, partially offset by higher depreciation and amortization resulting from
the purchase of Shadow Traffic.
Corporate general and administrative expenses increased 4%, to $4,273
in the first nine months of 1996 from $4,128 in 1995's first nine months,
principally to higher compensation expenses.
Interest expense decreased 11% to $6,494 in the first nine months of
1996 as compared to $7,318 in the first nine months of 1995. The decrease is
principally attributable to lower debt levels and lower interest rates.
Net income increased 119% to $12,817 ($.38 per share) in the first
nine months of 1996 as compared to $5,842 ($.17 per share) in the comparable
1995 period. The weighted average number of shares outstanding decreased 1% to
33,599 in 1996 from 34,036 in 1995.
LIQUIDITY AND CAPITAL RESOURCES
- -------------------------------
At September 30, 1996, the Company's cash and cash equivalents were
$4,232, an increase of $3,976 from December 31, 1995.
For the nine months ended September 30, 1996 net cash from operating
activities increased $5,216 to $22,260 as compared to $17,044 in 1995. The
improvement is principally attributable to improved operating results.
On September 30, 1996, the Company amended its bank revolving credit
facility. As a result of the amendment, the Facility was increased to $150,000,
the maturity of the Facility was extended to September 30, 2004, mandatory
reductions were postponed till September 30, 1999 and the interest rate
Applicable Margins were reduced. At September 30, 1996, the Company had
available borrowings of $35,000.
In the first nine months of 1996, as part of its Common Stock
Repurchase Plan, the Company repurchased 998 shares of Common Stock at a cost of
$15,143. Subsequent to September 1996 (through November 4, 1996), the Company
repurchased an additional 290 shares of Common Stock at a cost of $4,796.
8
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Management believes that the Company's cash, available borrowing and
anticipated cash flow from operations will be sufficient to finance current and
forecasted operations over the next 12 months.
9
<PAGE>
PART II OTHER INFORMATION
Items 1 through 5
- -----------------
These items are not applicable.
Item 6 - Exhibits and Reports on Form 8-K
- -----------------------------------------
(a) Exhibits
--------
10.1 Amended and Restated Credit Agreement, dated September 30, 1996
between Registrant and The Chase Manhattan Bank and co-Agents.
27. Financial Data Schedule
(b) Reports on Form 8-K
-------------------
There were no reports on Form 8-K filed for the three months ended
September 30, 1996.
10
<PAGE>
SIGNATURES
----------
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.
WESTWOOD ONE, INC.
By: /s/ FARID SULEMAN
--------------------------
FARID SULEMAN
Chief Financial Officer
Dated: November 8, 1996
11
AMENDED AND RESTATED CREDIT
AGREEMENT
among
WESTWOOD ONE, INC.,
The Several Lenders
from Time to Time Parties Hereto,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent,
THE FIRST NATIONAL BANK OF BOSTON, as Co-Agent,
BANK OF MONTREAL, as Co-Agent,
BANK OF AMERICA ILLINOIS, as Co-Agent.
Dated as of September 30, 1996
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TABLE OF CONTENTS
Page
<S> <C> <C>
SECTION 1. DEFINITIONS.......................................................................................................... 1
1.1 Defined Terms.................................................................................................... 1
1.2 Other Definitional Provisions.................................................................................... 19
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS...................................................................................... 19
2.1 Revolving Credit Commitments..................................................................................... 19
2.2 Procedure for Revolving Credit Borrowing......................................................................... 19
2.3 Commitment Fee................................................................................................... 20
2.4 Termination or Reduction of Revolving Credit Commitments......................................................... 20
2.5 Term Loans....................................................................................................... 21
2.6 Procedure for Term Loan Borrowing................................................................................ 21
2.7 Repayment of Loans; Evidence of Debt............................................................................. 22
2.8 Optional Prepayments............................................................................................. 23
2.9 Mandatory Prepayments and Commitment Reductions.................................................................. 24
2.10 Conversion and Continuation Options............................................................................. 25
2.11 Minimum Amounts and Maximum Number of Tranches.................................................................. 26
2.12 Interest Rates and Payment Dates................................................................................ 26
2.13 Computation of Interest and Fees................................................................................ 26
2.14 Inability to Determine Interest Rate............................................................................ 27
2.15 Pro Rata Treatment and Payments................................................................................. 28
2.16 Illegality...................................................................................................... 28
2.17 Requirements of Law............................................................................................. 29
2.18 Taxes........................................................................................................... 30
2.19 Indemnity....................................................................................................... 31
2.20 Change of Lending Office; Replacement or Prepayment of Lenders.................................................. 32
2.21 Commitment Increases............................................................................................ 33
SECTION 3. REPRESENTATIONS AND WARRANTIES....................................................................................... 34
3.1 Financial Condition.............................................................................................. 34
3.2 No Change........................................................................................................ 35
3.3 Corporate Existence; Compliance with Law......................................................................... 35
3.4 Corporate Power; Authorization; Enforceable Obligations.......................................................... 35
3.5 No Legal Bar..................................................................................................... 35
3.6 No Material Litigation........................................................................................... 36
3.7 No Default....................................................................................................... 36
3.8 Ownership of Property; Liens..................................................................................... 36
3.9 Intellectual Property............................................................................................ 36
3.10 Taxes........................................................................................................... 36
3.11 Federal Regulations............................................................................................. 36
3.12 ERISA........................................................................................................... 37
3.13 Investment Company Act; Other Regulations....................................................................... 37
3.14 Subsidiaries.................................................................................................... 37
3.15 Purpose of Loans................................................................................................ 37
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Page
3.16 Environmental Matters........................................................................................... 37
3.17 Senior Indebtedness............................................................................................. 38
3.18 Certain Documents............................................................................................... 38
SECTION 4. CONDITIONS PRECEDENT................................................................................................. 38
4.1 Conditions to Effectiveness...................................................................................... 38
4.2 Conditions to Each Loan.......................................................................................... 40
SECTION 5. AFFIRMATIVE COVENANTS................................................................................................ 40
5.1 Financial Statements............................................................................................. 41
5.2 Certificates; Other Information.................................................................................. 41
5.3 Payment of Obligations........................................................................................... 42
5.4 Conduct of Business and Maintenance of Existence................................................................. 42
5.5 Maintenance of Property; Insurance............................................................................... 42
5.6 Inspection of Property; Books and Records; Discussions........................................................... 42
5.7 Notices.......................................................................................................... 42
5.8 Additional Guarantors............................................................................................ 43
5.9 Unrestricted Subsidiaries; Maintenance of Separate Corporate Identity............................................ 43
SECTION 6. NEGATIVE COVENANTS................................................................................................... 45
6.1 Financial Condition Covenants.................................................................................... 45
6.2 Limitation on Indebtedness....................................................................................... 45
6.3 Limitation on Liens.............................................................................................. 46
6.4 Limitation on Guarantee Obligations.............................................................................. 47
6.5 Limitation on Fundamental Changes................................................................................ 48
6.6 Limitation on Sale of Assets..................................................................................... 48
6.7 Limitation on Restricted Payments................................................................................ 49
6.8 Limitation on Investments, Loans and Advances.................................................................... 50
6.9 Limitation on Optional Payments and Modifications of Debt Instruments............................................ 51
6.10 Limitation on Capital Expenditures.............................................................................. 51
6.11 Limitation on Sale or Discount of Receivables................................................................... 51
6.12 Limitation on Transactions with Affiliates...................................................................... 52
6.13 Limitation on Changes in Fiscal Year............................................................................ 52
6.14 Limitation on Negative Pledge Clauses........................................................................... 52
6.15 Limitation on Lines of Business................................................................................. 52
SECTION 7. EVENTS OF DEFAULT.................................................................................................... 52
SECTION 8. THE ADMINISTRATIVE AGENT............................................................................................. 55
8.1 Appointment...................................................................................................... 55
8.2 Delegation of Duties............................................................................................. 56
8.3 Exculpatory Provisions........................................................................................... 56
8.4 Reliance by Administrative Agent................................................................................. 56
8.5 Notice of Default................................................................................................ 57
8.6 Non-Reliance on Administrative Agent and Other Lenders........................................................... 57
- ii -
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Page
8.7 Indemnification.................................................................................................. 58
8.8 Administrative Agent in Its Individual Capacity.................................................................. 58
8.9 Successor Agents................................................................................................. 58
SECTION 9. MISCELLANEOUS........................................................................................................ 59
9.1 Amendments and Waivers........................................................................................... 59
9.2 Notices.......................................................................................................... 60
9.3 No Waiver; Cumulative Remedies................................................................................... 60
9.4 Survival of Representations and Warranties....................................................................... 60
9.5 Payment of Expenses and Taxes.................................................................................... 60
9.6 Successors and Assigns; Participations and Assignments........................................................... 61
9.7 Adjustments; Set-off............................................................................................. 63
9.8 Counterparts..................................................................................................... 64
9.9 Severability..................................................................................................... 64
9.10 Integration..................................................................................................... 64
9.11 GOVERNING LAW................................................................................................... 64
9.12 Submission To Jurisdiction; Waivers............................................................................. 64
9.13 Acknowledgements................................................................................................ 65
9.14 WAIVERS OF JURY TRIAL........................................................................................... 65
9.15 Treatment of Certain Information; Confidentiality............................................................... 66
9.16 Senior Indebtedness............................................................................................. 66
- iii -
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SCHEDULES
I Commitments
3.1 Dispositions
3.14 Subsidiaries
6.2 Permitted Indebtedness
6.3 Permitted Liens
6.4 Permitted Guarantees
6.8 Permitted Investments
6.12 Permitted Transactions with Affiliates
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Term Note
B Form of Amended and Restated Management Services Subordination
Agreement
C Form of Guarantee
D Form of Opinion of Counsel to the Loan Parties
E Form of Assignment and Acceptance
F Form of Borrowing Certificate
G Form of Tax Allocation Agreement
H-1 Form of New Lender Supplement
H-2 Form of Commitment Increase Supplement
- iv -
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
September 30, 1996, among WESTWOOD ONE, INC., a Delaware corporation (the
"Borrower"), the several banks and other financial institutions from time to
time parties to this Agreement (the "Lenders"), THE FIRST NATIONAL BANK OF
BOSTON, BANK OF MONTREAL and BANK OF AMERICA ILLINOIS, as co-agents for the
Lenders hereunder (in such capacity, the "Co-Agents") and THE CHASE MANHATTAN
BANK, as Administrative Agent for the Lenders hereunder.
W I T N E S S E T H:
--------------------
WHEREAS, the Borrower, the Administrative Agent and certain
banks and other financial institutions are parties to the Credit Agreement,
dated as of February 3, 1994 (as amended and waived to the date hereof, the
"Existing Credit Agreement"), pursuant to which the lenders thereunder made
loans to the Borrower under the terms provided for therein;
WHEREAS, the Borrower has informed the Administrative Agent
that it intends to refinance certain of its existing indebtedness and to make
acquisitions and has requested that the Existing Credit Agreement be amended and
restated to, inter alia, provide for (i) a $75,000,000 revolving credit facility
(subject to increase as provided for herein) and (ii) a $75,000,000 term loan
facility, which Facilities will be utilized by the Borrower to refinance certain
of its existing indebtedness, to make acquisitions and to provide financing for
the working capital needs and general corporate purposes of the Borrower and its
Subsidiaries, including the repurchase of shares of its Capital Stock and
capital expenditures; and
WHEREAS, the Administrative Agent and the Lenders are
willing so to amend and restate the Existing Credit Agreement, but only on the
terms and conditions hereof;
NOW, THEREFORE, in consideration of the mutual covenants
and premises hereinafter set forth, effective as of the Closing Date, the
parties hereto hereby amend and restate the Existing Credit Agreement as
follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR": for any day, a rate per annum 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 Administrative Agent as
its prime rate in effect at its principal office in New York City
(the Prime Rate not being intended to be the lowest rate of interest
charged by Chase in connection with extensions of credit to debtors);
and "Federal Funds Effective Rate" shall mean, for
<PAGE>
2
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. Any change in the ABR due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as
of the opening of business on the effective day of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": loans the rate of interest applicable to
which is based upon the ABR.
"Adjustment Date": each date on or after the Closing Date
that is the second Business Day following receipt by the Lenders of
both (i) the financial statements required to be delivered pursuant
to subsection 5.1(a) or 5.1(b), as applicable, for the most recently
completed fiscal period and (ii) the related compliance certificate
required to be delivered pursuant to subsection 5.2(b) with respect
to such fiscal period.
"Administrative Agent": Chase, together with its
affiliates, as the arranger of the Commitments and as the
administrative agent for the Lenders under this Agreement and the
other Loan Documents.
"Affiliate": as to any Person, any other Person (other
than a Subsidiary) which, directly or indirectly, is in control of,
is controlled by, or is under common control with, such Person.
"Agreement": this Amended and Restated Credit Agreement,
as amended, supplemented or otherwise modified from time to time.
"Annualized Consolidated Corporate Overhead": for any
period, corporate general and administrative expenses of the Borrower
and its Restricted Subsidiaries for such period as shown on the
consolidated financial statements of the Borrower and its Restricted
Subsidiaries for such period delivered to the Administrative Agent
pursuant to subsection 5.1(a) or 5.1(b); provided that there shall be
excluded from "Annualized Consolidated Corporate Overhead" (a) all
non-cash charges and (b) all corporate general and administrative
expenses of the Borrower incurred on behalf of, or otherwise
attributable to, Unrestricted Subsidiaries or in connection with
management and other services and activities performed by the
Borrower for Unrestricted Subsidiaries.
"Annualized Consolidated Operating Cash Flow" or "ACOCF":
for any period, the aggregate amount (determined on a consolidated
basis without duplication in accordance with GAAP), for the Borrower
and its Restricted Subsidiaries, of (a) the sum of (i) net revenues
of the Borrower and its Restricted Subsidiaries for such period
<PAGE>
3
(calculated before taxes and excluding (A) any net gain or loss
arising from the sale of capital assets during such period; (B) any
gain arising from any write-up of assets during such period; (C) net
earnings for such period of any Person in which the Borrower or any
of its Restricted Subsidiaries has an ownership interest unless such
net earnings shall have actually been received by the Borrower or
such Restricted Subsidiary in the form of cash distributions (other
than cash distributions received by the Borrower from an Unrestricted
Subsidiary); (D) any portion of the net earnings of any Restricted
Subsidiary of the Borrower or any of its Restricted Subsidiaries for
such period which for any reason is unavailable for payment of
dividends to the Borrower or any other such Restricted Subsidiary;
(E) any gain realized during such period arising from the acquisition
of any securities of the Borrower or any of its Restricted
Subsidiaries; (F) any "extraordinary", "unusual" or "non-recurring"
earnings or "extraordinary", "unusual" or "non-recurring" losses for
such period as such terms are interpreted under GAAP; and (G) any
interest income of the Borrower and its Restricted Subsidiaries
realized during such period) minus (ii) operating expenses of the
Borrower and its Restricted Subsidiaries for such period (excluding
depreciation, amortization, interest expense and other non-cash
charges accrued, and income taxes paid or accrued (other than any
such taxes attributable to the revenues of Unrestricted Subsidiaries
for which the Borrower has not been or is not entitled to be
reimbursed, or in respect of which the Borrower has not received or
is not entitled to receive a credit, pursuant to the terms of any Tax
Allocation Agreement), for such period by the Borrower and its
Restricted Subsidiaries) minus (b) Annualized Consolidated Corporate
Overhead for such period; provided that for purposes of calculating
Annualized Consolidated Operating Cash Flow when such term is used in
determining the Total Debt Ratio, if the Borrower or any of its
Restricted Subsidiaries shall have acquired or disposed of one or
more businesses (or any part thereof) during such period, Annualized
Consolidated Operating Cash Flow for such period shall be computed as
if (in the case of an acquisition) such business (or part thereof)
had been owned by the Borrower or such Restricted Subsidiary for the
whole of such period or (in the case of a disposition) such business
(or part thereof) had been disposed of prior to the first day of such
period.
"Applicable Margin": during the period from the Closing
Date until the first Adjustment Date, the Applicable Margin shall
equal (i) with respect to ABR Loans, 0% per annum and (ii) with
respect to Eurodollar Loans, .750% per annum; such Applicable Margin
will be adjusted on each Adjustment Date to the applicable rate per
annum set forth under the column heading "Alternate Base Rate Loans"
or "Eurodollar Loans" on the table set forth below which corresponds
to the Total Debt Ratio determined from the financial statements and
compliance certificate relating to the end of the fiscal quarter
immediately preceding such Adjustment Date;
<PAGE>
4
- --------------------------------------------------------------------------------
Total Debt Alternate Base Eurodollar
equal to 5.00:1 .250% 1.250%
- --------------------------------------------------------------------------------
less than 5.00:1 and greater than or
equal to 4.25:1 0% 1.000%
- --------------------------------------------------------------------------------
less than 4.25:1 and greater than or
equal to 3.25:1 0% .750%
- --------------------------------------------------------------------------------
less than 3.25:1 0% .500%
- --------------------------------------------------------------------------------
provided that in the event that the financial statements required to
be delivered pursuant to subsection 5.1(a) or 5.1(b), as applicable,
and the related compliance certificate required to be delivered
pursuant to subsection 5.2(b), are not delivered when due, then
(a) if such financial statements and certificate
are delivered after the date such financial statements and
certificate were required to be delivered (without giving
effect to any applicable cure period) and the Applicable
Margin increases from that previously in effect as a result
of the delivery of such financial statements, then the
Applicable Margin during the period from the date upon
which such financial statements were required to be
delivered (without giving effect to any applicable cure
period) until the date upon which they actually are
delivered shall, except as otherwise provided in clause (c)
below, be the Applicable Margin as so increased;
(b) if such financial statements and certificate
are delivered (without giving effect to any cure period)
after the date such financial statements and certificate
were required to be delivered and the Applicable Margin
decreases from that previously in effect as a result of the
delivery of such financial statements, then such decrease
in the Applicable Margin shall not become applicable until
the date upon which the financial statements and
certificate actually are delivered; and
(c) if such financial statements and certificate
are not delivered prior to the expiration of the applicable
cure period, then, effective upon such expiration, for the
period from the date upon which such financial statements
and certificate were required to be delivered (after the
expiration of the applicable cure period) until two
Business Days following the date upon which they actually
are delivered, the Applicable Margin shall be 1.250%, in
the case of Eurodollar Loans, and .250%, in the case of ABR
Loans (it being understood that the foregoing shall not
limit the rights of the Administrative Agent and the
Lenders set forth in subsection 2.12(c) or Section 7).
"Applicable Percentage": with respect to any Lender, the
percentage of the aggregate Revolving Credit Commitments represented
by such Lender's Revolving Credit Commitment. If the Revolving Credit
Commitments have terminated or expired, the Applicable Percentage
shall be determined based upon the Revolving Credit Commitments most
recently in effect, giving effect to any assignments.
<PAGE>
5
"Assignee": as defined in subsection 9.6(c).
"Available Revolving Credit Commitments": at any time, an
amount equal to the excess, if any, of (a) the amount of Revolving
Credit Commitments then in effect over (b) the aggregate principal
amount of all Revolving Credit Loans then outstanding.
"BOA": Bank of America Illinois.
"BOB": The First National Bank of Boston.
"BOM": Bank of Montreal.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.2 or 2.6 as a date on which the Borrower
requests the Lenders to make Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized
or required by law to close; provided, that when such term is used to
describe a day on which a borrowing, payment or interest rate
determination is to be made in respect of a Eurodollar Loan, such day
shall also be a day on which dealings in foreign currencies and
exchange between banks may be carried on in London, England.
"Capital Expenditures": shall mean, for any period,
expenditures (including the aggregate amount of Capital Lease
Obligations incurred during such period) made by the Borrower or any
of its Restricted Subsidiaries to acquire or construct fixed assets,
plant and equipment (including renewals, improvements and
replacements, but excluding repairs) during such period computed in
accordance with GAAP.
"Capital Stock": 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.
"Cash Equivalents": (a) securities with maturities of one
year or less from the date of acquisition issued or fully guaranteed
or insured by the United States Government or any agency thereof, (b)
certificates of deposit and eurodollar time deposits with maturities
of one year or less from the date of acquisition and overnight bank
deposits of any Lender or of any commercial bank having capital and
surplus in excess of $500,000,000, (c) repurchase obligations of any
Lender or of any commercial bank having capital and surplus in excess
of $500,000,000, having a term of not more than 30 days with respect
to securities issued or fully guaranteed or insured by the United
States Government, (d) commercial paper of a domestic issuer rated at
<PAGE>
6
least A-2 by Standard and Poor's Ratings Services ("S&P") or P-2 by
Moody's Investors Service, Inc. ("Moody's"), (e) debt securities with
maturities of one year or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the
United States, by any political subdivision or taxing authority of
any such state, commonwealth or territory or by any Person which are
rated at least A by S&P or A by Moody's, (f) debt securities with
maturities of one year or less from the date of acquisition backed by
standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition, (g)
shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a)
through (f) of this definition or (h) securities similar in nature
and maturity to those described in the foregoing clauses (a) through
(g) denominated in foreign currencies and owned by a Foreign
Subsidiary.
"Chase": The Chase Manhattan Bank.
"Class Action Warrants": shall mean the warrants
outstanding as of the date hereof (not in excess of 3,000,000 in
number), each exercisable by the holder thereof to purchase one share
of the common stock of the Borrower at a price of $17.25 per share,
as in effect from time to time.
"Closing Date": the date on which the conditions precedent
set forth in subsection 4.1 shall be satisfied.
"Co-Agents": as defined in the preamble hereto.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment Increase Offer": as defined in subsection
2.21(a).
"Commitment Period": the period from and including the
Closing Date to but not including the Termination Date or such
earlier date on which the Revolving Credit Commitments shall
terminate as provided herein.
"Commitments": collectively, the Term Loan Commitments and
the Revolving Credit Commitments.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Contractual Obligation": as to any Person, any provision
of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it
or any of its property is bound.
"Declined Amount": as defined in subsection 2.21(a).
<PAGE>
7
"Declining Lender": as defined in subsection 2.21(a).
"Default": any of the events specified in Section 8,
whether or not any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the
United States.
"Domestic Subsidiary": any Subsidiary of the Borrower
organized under the laws of any jurisdiction within the United
States.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental
Authority or other Requirements of Law (including common law)
regulating, relating to or imposing liability or standards of conduct
concerning protection of human health or the environment, as now or
may at any time hereafter be in effect.
"Environmental Permits": any and all permits, licenses,
registrations, notifications, exemptions and any other authorization
required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied
to a Eurodollar Loan, the aggregate (without duplication) of the
rates (expressed as a decimal fraction) of reserve requirements in
effect on such day (including, without limitation, basic,
supplemental, marginal and emergency reserves under any regulations
of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D
of such Board) maintained by a member bank of such System.
"Eurodollar Base Rate": with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, the rate per
annum equal to the arithmetic mean (rounded upward to the nearest
1/100th of 1%) of the respective rates per annum notified to the
Administrative Agent by each of the Reference Lenders as the rate at
which such Reference Lender is offered Dollar deposits at or about
10:00 A.M., New York City time, on the date two Business Days prior
to the beginning of such Interest Period in the interbank eurodollar
market where the eurodollar and foreign currency and exchange
operations in respect of its Eurodollar Loans are then being
conducted, for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to
the amount of its Eurodollar Loan to be outstanding during such
Interest Period.
<PAGE>
8
"Eurodollar Loans": Loans the rate of interest applicable
to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section
7, provided that any requirement for the giving of notice, the lapse
of time, or both, or any other condition, has been satisfied.
"Excess Cash Flow": for any fiscal year, the amount (if
any) by which (a) the sum of (i) Annualized Consolidated Operating
Cash Flow for such fiscal year plus (ii) any interest income realized
in cash of the Borrower and its Restricted Subsidiaries during such
fiscal year exceeds (b) the sum of (i) Total Debt Service for such
fiscal year plus (ii) the aggregate amount of Capital Expenditures
made by the Borrower and its Restricted Subsidiaries during such
fiscal year (net of long-term Indebtedness, if any, incurred by the
Borrower and its Restricted Subsidiaries during such fiscal year)
plus (iii) the aggregate amount of income taxes paid or payable by
the Borrower (excluding any such taxes attributable to the revenues
of Unrestricted Subsidiaries for which the Borrower has been or is
entitled to be reimbursed, or has received or is entitled to receive
a credit, pursuant to the terms of any Tax Allocation Agreement) and
its Restricted Subsidiaries during such fiscal year.
"Existing Credit Agreement": as defined in the recitals
hereto.
"Existing Loans": collectively the loans outstanding under
the Existing Credit Agreement.
"Financing Lease": any lease of property, real or
personal, the obligations of the lessee in respect of which are
required in accordance with GAAP to be capitalized on a balance sheet
of the lessee.
"First Unrestricted Basket": at any time, an amount equal
to the sum of (a) $50,000,000 plus (b) the aggregate net cash
proceeds received by the Borrower subsequent to the Closing Date from
the issuance of shares of its Capital Stock.
"Foreign Subsidiary": any Subsidiary of the Borrower
organized under the laws of any jurisdiction outside the United
States.
"GAAP": generally accepted accounting principles in the
United States consistent with those utilized in preparing the audited
financial statements referred to in subsection 4.1.
<PAGE>
9
"Governmental Authority": any nation or government, any
state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantee": the guarantee to be executed and delivered by
each Restricted Subsidiary other than a Foreign Subsidiary,
substantially in the form of Exhibit C, as the same may be amended,
supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b)
another Person to induce the creation of which the guaranteeing
person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary
obligations") of any other third Person (the "primary obligor") in
any manner, whether directly or indirectly, including, without
limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth
or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (iv) otherwise
to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall
be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of
the instrument embodying such Guarantee Obligation, unless such
primary obligation and the maximum amount for which such guaranteeing
person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing
person's maximum reasonably anticipated liability in respect thereof
as determined by the Borrower in good faith.
"Guarantor": any Person party to the Guarantee.
"Incentive Warrants": shall mean the Stock Incentive
Option as defined in the Management Agreement (comprising warrants
each for 500,000 shares of the Borrower's common stock to be issued
to INI pursuant to the Management Agreement).
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money
or for the deferred purchase price of property or services (other
than trade liabilities incurred in the ordinary course of business
and payable in accordance with customary practices), (b) any other
indebtedness of such Person which is evidenced by a note, bond,
debenture or similar instrument, (c) all obligations of such Person
<PAGE>
10
under Financing Leases, (d) all obligations of such Person contingent
or otherwise in respect of banker's acceptances or similar
instruments issued or created for the account of such Person, (e) all
obligations, contingent or otherwise, of such Person as an account
party under acceptance, letter of credit or similar facilities and
(f) all liabilities of the type described in clauses (a) through (e)
above secured by any Lien on any property owned by such Person (not
to exceed the value of such property) even though such Person has not
assumed or otherwise become liable for the payment thereof.
"Infinity": Infinity Broadcasting Corporation, a Delaware
corporation.
"Infinity Agreements": collectively, the Management
Agreement and the Voting Agreement.
"INI": (a) Infinity Network Inc., a Delaware corporation
that, on the date hereof, is a wholly owned Subsidiary of Infinity,
or (b) any other wholly owned Subsidiary of Infinity that owns
Capital Stock or other ownership interests of the Borrower; provided
that Infinity shall have notified the Administrative Agent of the
name of such other Subsidiary and the amount of such ownership
interests owned by such Subsidiary.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Installment Date": as defined in subsection 2.7(a).
"Interest Payment Date": (a) as to any ABR Loan, the last
day of each March, June, September and December, (b) as to any
Eurodollar Loan having an Interest Period of three months or less,
the last day of such Interest Period, and (c) as to any Eurodollar
Loan having an Interest Period longer than three months, each day
which is three months, or a whole multiple thereof, after the first
day of such Interest Period and the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the
borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three
or six months thereafter, as selected by the Borrower in
its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and
(b) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable
to such Eurodollar Loan and ending one, two, three or six
months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less
than three Business Days prior to the last day of the then
current Interest Period with respect thereto;
<PAGE>
11
provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:
(i) if any Interest Period pertaining to a
Eurodollar Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into
another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(ii) any Interest Period that would otherwise
extend beyond the Termination Date or beyond the date
final payment is due on the Term Loans shall end on the
Termination Date or such date of final payment, as the
case may be;
(iii) any Interest Period pertaining to a
Eurodollar Loan that begins on the last Business Day of a
calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods
so as not to require a payment or prepayment of any
Eurodollar Loan during an Interest Period for such Loan.
"Interest Rate Protection Agreement": for any Person, an
interest rate swap, cap or collar agreement or similar arrangement
between such Person and a financial institution providing for the
transfer or mitigation of interest risks either generally or under
specific contingencies.
"Investment": as defined in subsection 6.8.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge
or other security interest or any preference, priority or other
security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or
other title retention agreement and any Financing Lease having
substantially the same economic effect as any of the foregoing).
"Loan": any loan or advance made by any Lender pursuant to
this Agreement.
"Loan Documents": this Agreement, any Notes and the
Guarantee.
"Loan Parties": the Borrower and each Subsidiary of the
Borrower which is a party to a Loan Document.
<PAGE>
12
"Majority Lenders": at any time prior to the satisfaction
of the conditions precedent set forth in subsection 4.1 on the
Closing Date, Lenders having at least 51% of the aggregate
Commitments; and, at any time thereafter, Lenders having total
exposure consisting of Term Loans and Revolving Credit Commitments in
an aggregate amount of at least 51% of an amount equal to the sum of
(a) the aggregate Term Loans then outstanding plus (b) the aggregate
Revolving Credit Commitments or, at any time after the termination or
expiration of the Revolving Credit Commitments, Lenders having total
exposure consisting of Term Loans and Revolving Credit Loans in an
aggregate amount of at least 51% of an amount equal to the sum of (x)
the aggregate Term Loans then outstanding plus (y) the aggregate
Revolving Credit Loans then outstanding.
"Majority Revolving Credit Lenders": at any time prior to
the expiration or termination of the Revolving Credit Commitments,
Lenders having an aggregate Applicable Percentage of at least 51%;
or, at any time after the expiration or termination of the Revolving
Credit Commitments, Lenders having total exposure of Revolving Credit
Loans in an amount of at least 51% of the aggregate Revolving Credit
Loans then outstanding.
"Majority Term Lenders": at any time prior to the
satisfaction of the conditions precedent set forth in subsection 4.1
on the Closing Date, Lenders having at least 51% of the aggregate
Term Loan Commitments; and at any time thereafter, Lenders holding at
least 51% of the aggregate Term Loans then outstanding.
"Management Agreement": shall mean a Management Agreement
between the Borrower and Infinity in substantially the form of
Exhibit A to the Stock Purchase Agreement, as the same shall be
modified and supplemented and in effect from time to time.
"Management Fees": shall mean, for any period, fees and
cash incentive bonuses payable to Infinity under the Management
Agreement during such period for administrative, management and other
services performed for the Borrower and its Subsidiaries.
"Management Services Subordination Agreement": the Amended
and Restated Management Services Subordination Agreement
substantially in the form of Exhibit B, as the same may be amended,
supplemented or otherwise modified from time to time.
"Mandatory Reduction Date": as defined in subsection
2.4(b).
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, property, assets, liabilities or condition
(financial or otherwise) of the Borrower and its Restricted
Subsidiaries taken as a whole or (b) the validity or enforceability
of this or any of the other Loan Documents or the rights or remedies
of the Administrative Agent or the Lenders hereunder or thereunder.
<PAGE>
13
"Material Environmental Amount": an amount finally
determined to be payable by the Borrower and/or its Subsidiaries in
excess of $1,000,000 for remedial costs, compliance costs,
compensatory damages, punitive damages, fines, penalties or any
combination thereof.
"Materials of Environmental Concern": any gasoline or
petroleum (including, without limitation, crude oil or any fraction
thereof) or petroleum products or any hazardous or toxic substances,
materials or wastes defined or regulated as such in or under any
Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Multiemployer Plan": a Plan which is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
"New Lender": as defined in subsection 2.21(b).
"Non-Excluded Taxes": as defined in subsection 2.18(a).
"Notes": the collective reference to the Revolving Credit
Notes and the Term Notes.
"Participant": as defined in subsection 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Permitted Additional Indebtedness": Indebtedness incurred
by the Borrower which is (i) unsecured, (ii) no portion of the
principal of which is required to be repaid, repurchased or retired
prior to October 31, 2004 (other than upon a change of control of the
Borrower) and (iii) has other terms and conditions (other than those
relating to interest rate, fees and premiums) which, taken as a
whole, are no more restrictive on the Borrower (as determined in good
faith by the Board of Directors of the Borrower in the exercise of
its reasonable discretion) than the terms and conditions of this
Agreement and the 6-3/4% Debenture Indenture, as in effect on the
date of incurrence of such Indebtedness, provided, that the Total
Debt Ratio, both prior to and after giving effect to the incurrence
of such Indebtedness, is less than 4.50:1.00.
"Person": an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": at a particular time, any employee benefit plan
which is covered by ERISA and in respect of which the Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at
such time, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
<PAGE>
14
"Properties": the facilities and properties owned, leased
or operated by the Borrower or any of its Subsidiaries.
"Reference Lenders": Chase, BOM and BOB.
"Register": as defined in subsection 9.6(d).
"Regulation U": Regulation U of the Board of Governors of
the Federal Reserve System as in effect from time to time.
"Reorganization": with respect to any Multiemployer Plan,
the condition that such plan is in reorganization within the meaning
of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .13, .14, .16, .18, .19 or
.20 of PBGC Reg. ss. 2615.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": the Chairman of the Board, the
Co-Chairman of the Board, the chief executive officer, the president
or the chief financial officer of the Borrower.
"Restricted Subsidiary": each Subsidiary of the Borrower
other than an Unrestricted Subsidiary.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to the
Borrower hereunder in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule I under the heading "Revolving Credit Commitment",
as such amount may be changed from time to time in accordance with
the provisions of this Agreement.
"Revolving Credit Loans": all loans made or deemed made
pursuant to subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.7(e).
"Second Unrestricted Basket": at any time. an amount equal
to the sum of (a) any Excess Cash Flow of the Borrower and its
Restricted Subsidiaries for any fiscal year commencing with the
fiscal year ending on December 31, 1999 not required to be applied
pursuant to subsection 2.9(a) to the prepayment of the Loans and the
permanent reduction of the Revolving Credit Commitments plus (b) the
aggregate net cash proceeds received by the Borrower subsequent to
<PAGE>
15
the Closing Date from the issuance of shares of its Capital Stock
(net of the amount of any such net cash proceeds expended pursuant to
subsection 6.7(b)(i) or 6.8(g)(iii)(A) under the First Unrestricted
Basket).
"Single Employer Plan": any Plan which is covered by Title
IV of ERISA, but which is not a Multiemployer Plan.
"6-3/4% Debentures": the 6-3/4% Convertible Subordinated
Debentures Due 2011 of the Borrower, as the same shall be modified
and supplemented and in effect from time to time in accordance with
subsection 6.9.
"6-3/4% Debenture Indenture": the Indenture dated as of
October 15, 1986 between the Borrower and Security Pacific National
Bank, as Trustee, providing for the 6-3/4% Debentures, as the same
shall be modified and supplemented and in effect from time to time in
accordance with subsection 6.9.
"Stock Purchase Agreement": the Stock Purchase Agreement
dated as of November 4, 1993 among Unistar Communications Group,
Inc., Unistar Radio Networks, Inc., Infinity and the Borrower, as the
same shall be modified and supplemented and in effect from time to
time.
"Subsidiary": as to any Person, a corporation, partnership
or other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership or other entity are
at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified,
all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the
Borrower.
"Tax Allocation Agreements": each Tax Allocation Agreement
substantially in the form of Exhibit G hereto, each between the
Borrower and an Unrestricted Subsidiary, as the same may be amended,
supplemented or otherwise modified from time to time.
"Term Loans": all loans made pursuant to subsection 2.5.
"Term Loan Commitments": as to any Lender, the obligation
of such Lender to make Term Loans to the Borrower hereunder in
aggregate principal amount not to exceed the amount set forth
opposite such Lender's name on Schedule I under the heading "Total
Term Loan Commitment".
"Term Note": as defined in subsection 2.7(e).
"Termination Date": September 30, 2004.
<PAGE>
16
"Total Debt": the sum of, without duplication, (a) all
Indebtedness (other than Indebtedness in respect of the undrawn
amount of any letters of credit ) of the Borrower and its Restricted
Subsidiaries, determined on a consolidated basis and (b) all
Indebtedness (other than Indebtedness in respect of the undrawn
amount of any letters of credit) of others for which a Guarantee
Obligation has been given by the Borrower or any Restricted
Subsidiary.
"Total Debt Ratio": as of any date of determination
thereof, the ratio of (a) Total Debt outstanding as of such date to
(b) Annualized Consolidated Operating Cash Flow for the period of the
four fiscal quarters of the Borrower ended on, or most recently ended
prior to, such date for which financial statements have been, or are
required to have been, provided to the Lenders pursuant to subsection
5.1.
"Total Debt Service": as at the last day of any fiscal year
of the Borrower, the sum (calculated without duplication) of all
payments of principal of and interest on Indebtedness of the Borrower
and its Restricted Subsidiaries made or scheduled to be made during
such fiscal year (other than payments of principal which may be
reborrowed), provided that, for any fiscal year ending on or prior to
the Termination Date, "Total Debt Service" shall include all
mandatory reductions of the Revolving Credit Commitments pursuant to
subsection 2.4(b) effected during such fiscal year.
"Total Fixed Charge Coverage Ratio": as of any date of
determination thereof, the ratio of (a) Annualized Consolidated
Operating Cash Flow for the period of four fiscal quarters of the
Borrower ended on, or most recently ended prior to, such date to (b)
Total Fixed Charges for such period.
"Total Fixed Charges": for any period, the sum of (a) Total
Interest for such period plus (b) all payments of principal of
Indebtedness of the Borrower and its Restricted Subsidiaries made or
scheduled to be made during such period (other than payments of
principal which may be reborrowed), including all mandatory
reductions of the Revolving Credit Commitments pursuant to subsection
2.4(b) effected during such period plus (c) Capital Expenditures made
during such period plus (d) the aggregate amount of income taxes paid
or payable by the Borrower (excluding any such taxes attributable to
the revenues of Unrestricted Subsidiaries for which the Borrower has
been or is entitled to be reimbursed, or has received or is entitled
to receive a credit, pursuant to the terms of any Tax Allocation
Agreement) and its Restricted Subsidiaries during such fiscal year.
"Total Interest": for any period, all interest, whether
paid in cash or accrued as a liability, on all Indebtedness
(including imputed interest on Financing Leases) of the Borrower and
its Restricted Subsidiaries, determined on a consolidated basis,
during such period.
"Total Interest Coverage Ratio": as of any date of
determination thereof, the ratio of (a) Annualized Consolidated
Operating Cash Flow for the period of four fiscal quarters of the
Borrower ended on, or most recently ended prior to, such date to (b)
Total Interest for such period.
<PAGE>
17
"Tranche": the collective reference to Eurodollar Loans
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).
"Transferee": as defined in subsection 9.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"United States": the United States of America.
"Unrestricted Subsidiary": any Subsidiary of the Borrower
which has been organized or acquired after the date hereof and
designated by the Board of Directors of the Borrower as an
"Unrestricted Subsidiary", provided, in each case, that at the time
any such other Subsidiary is so organized or acquired and at all
times thereafter:
(a) none of the issued and outstanding capital
stock of such Subsidiary (or any Subsidiary of such
Subsidiary) is owned by any Restricted Subsidiary;
(b) except as permitted by subsection 6.8(g), no
proceeds of any Loan hereunder are used to finance or pay
any cost or expense related to the organization of, or
acquisition of the assets or properties of, such Subsidiary
(or any Subsidiary of such Subsidiary);
(c) except as permitted by subsection 6.8(g),
neither the Borrower nor any Restricted Subsidiary is at
the time such Subsidiary (or any Subsidiary of such
Subsidiary) is organized or acquired or at any time
thereafter (x) directly or indirectly liable (contingently
or otherwise), or provides or is obligated to provide any
credit support, for any Indebtedness (including, without
limitation, any undertaking, agreement or instrument
evidencing such Indebtedness) or other obligation of such
Subsidiary (or any Subsidiary of such Subsidiary), (y)
obligated to contribute any funds or other property to
such Subsidiary (or any Subsidiary of such Subsidiary) or
(z) otherwise directly or indirectly obligated to any
other Person on account of the Indebtedness, other
obligations or financial condition of such Subsidiary (or
any Subsidiary of such Subsidiary) except to the extent of
a pledge or security interest in the Capital Stock owned
by the Borrower of such Subsidiary as collateral security
for obligations of such Subsidiary (or any Subsidiary of
such Subsidiary);
(d) no agreements, instruments or other
documents governing or evidencing any Indebtedness of such
Subsidiary (or any Subsidiary of such Subsidiary) contains
a cross-default or cross-acceleration clause or other
"event of default" or similar event the occurrence of
which (with or without notice or lapse of time or both)
causes or would permit the holder(s) thereof to cause such
Indebtedness to become due or to be required to be
purchased or redeemed by such Subsidiary or any of its
Affiliates prior to its stated maturity or to take
enforcement action against such Subsidiary (or any
Subsidiary of such Subsidiary) solely by reason of (x) the
<PAGE>
18
the occurrence of a Default or Event of Default hereunder,
(y) the occurrence of any default or other event or
condition in respect of any other Indebtedness of the
Borrower or any of its Restricted Subsidiaries (including,
without limitation, subordinated debt) or (z) the
occurrence of any event or condition with respect to the
Borrower or any of its Restricted Subsidiaries other than
any event or condition described in Section 7(f) with
respect to the Borrower;
(e) the Borrower and such Subsidiary (or another
Unrestricted Subsidiary of which such Subsidiary is a
Subsidiary), acting on its own behalf and on behalf of its
Subsidiaries, have entered into a Tax Allocation Agreement,
which Agreement shall be in full force and effect at the
time such Subsidiary is organized or acquired and at all
times thereafter; and
(f) the Borrower has notified the Lenders as to
the organization or acquisition of such Subsidiary as
required by subsection 5.9 and the Borrower is in
compliance with its other obligations set forth in
subsection 5.9.
"Voting Agreement": shall mean a Voting Agreement between
the Borrower, Norman J. Pattiz and INI in substantially the form of Exhibit B to
the Stock Purchase Agreement, as the same shall be modified and supplemented and
in effect from time to time.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
the Borrower and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms
and conditions hereof, each Lender severally agrees to make revolving credit
loans ("Revolving Credit Loans") to the Borrower from time to time during the
Commitment Period in an aggregate principal amount at any one time outstanding
which does not exceed the amount of such
<PAGE>
19
Lender's Revolving Credit Commitment, provided that at no time shall the
aggregate principal amount of Revolving Credit Loans exceed the aggregate amount
of the Revolving Credit Commitments as then in effect. During the Commitment
Period the Borrower may use the Revolving Credit Commitments by borrowing,
prepaying the Revolving Credit Loans in whole or in part, and reborrowing, all
in accordance with the terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower and notified to the Administrative Agent in accordance with
subsections 2.2 and 2.10, provided that no Revolving Credit Loan shall be made
as a Eurodollar Loan after the day that is one month prior to the Termination
Date.
2.2 Procedure for Revolving Credit Borrowing. The Borrower
may borrow under the Revolving Credit Commitments during the Commitment Period
on any Business Day, provided that the Borrower shall give the Administrative
Agent irrevocable notice (which notice must be received by the Administrative
Agent prior to 11:30 A.M., New York City time (and 10:00 A.M. New York City time
in the case of any Revolving Credit Loans requested to be made on the Closing
Date), (a) three Business Days prior to the requested Borrowing Date, if all or
any part of the requested Revolving Credit Loans are to be initially Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date, otherwise,
specifying (i) the amount to be borrowed, (ii) the requested Borrowing Date,
(iii) whether the borrowing is to be of Eurodollar Loans, ABR Loans or a
combination thereof and (iv) if the borrowing is to be entirely or partly of
Eurodollar Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Periods therefore. Each borrowing by
the Borrower under the Revolving Credit Commitments shall be in an amount equal
to (x) in the case of ABR Loans, $500,000 or a whole multiple of $100,000 in
excess thereof (or, if the then Available Revolving Credit Commitments are less
than $500,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$3,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of
any such notice from the Borrower, the Administrative Agent shall promptly
notify each Lender thereof. Each Lender will make the amount of its pro rata
share of each borrowing available to the Administrative Agent for the account of
the Borrower at the office of the Administrative Agent specified in subsection
9.2 prior to 11:00 A.M., New York City time, on the Borrowing Date requested by
the Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the Administrative
Agent crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
2.3 Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee for the
period from and including the first day of the Commitment Period to the
Termination Date, computed at the rate of 1/4 of 1% per annum on an amount equal
to the sum of (i) such Lender's Applicable Percentage of the average daily
amount of the Available Revolving Credit Commitments and (ii) such Lender's
ratable share of the then undrawn and available Term Loan Commitments, during
the period for which payment is made. Such commitment fee shall be payable
quarterly in arrears on the last day of each March, June, September and December
<PAGE>
20
and on the Termination Date or such earlier date as the Revolving Credit
Commitments shall terminate as provided herein, commencing on the first of such
dates to occur after the date hereof.
2.4 Termination or Reduction of Revolving Credit
Commitments. (a) The Borrower shall have the right, upon not less than one
Business Day's notice to the Administrative Agent, to terminate the Revolving
Credit Commitments or from time to time, to reduce the amount of the Revolving
Credit Commitments to an amount not less than the aggregate principal amount of
Revolving Credit Loans outstanding after giving effect to any prepayments of the
Revolving Credit Loans being made on the date of such reduction. Any such
reduction shall be in an amount equal to $500,000 or a whole multiple of
$100,000 in excess thereof and shall reduce permanently the Revolving Credit
Commitments then in effect. Any such reduction shall also reduce pro rata the
amounts of the then remaining mandatory reductions specified in subsection
2.4(b).
(b) The Revolving Credit Commitments shall be automatically
reduced on each of the dates specified below (each, a "Mandatory Reduction
Date"), commencing on September 30, 1999, by an aggregate amount equal to the
percentage set forth opposite such date multiplied by the Revolving Credit
Commitments in effect on December 31, 1998:
Percentage of
Mandatory Revolving Credit
Reduction Date Commitments
-------------- ----------------
September 30, 1999 2.50%
December 31, 1999 2.50%
March 31, 2000 2.50%
June 30, 2000 2.50%
September 30, 2000 2.50%
December 31, 2000 2.50%
March 31, 2001 3.75%
June 30, 2001 3.75%
September 30, 2001 3.75%
December 31, 2001 3.75%
March 31, 2002 5.00%
June 30, 2002 5.00%
September 30, 2002 5.00%
December 31, 2002 5.00%
March 31, 2003 6.25%
June 30, 2003 6.25%
September 30, 2003 6.25%
December 31, 2003 6.25%
March 31, 2004 8.33%
June 30, 2004 8.33%
September 30, 2004 8.34%
(c) If the aggregate then outstanding principal amounts of
Revolving Credit Loans shall exceed the aggregate amount of the Revolving Credit
Commitments as reduced at any time pursuant to subsection 2.4(b) or 2.9(d), the
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21
Borrower shall prepay Revolving Credit Loans to the extent outstanding in an
amount equal to such excess. Each such prepayment shall be accompanied by
payment of accrued interest on the amount prepaid plus any amounts payable
pursuant to subsection 2.19.
2.5 Term Loans. Subject to the terms and conditions hereof,
each Lender severally agrees to make term loans (a "Term Loan") on the Closing
Date to the Borrower in a principal amount not to exceed the amount set forth
opposite such Lender's name in Schedule I as its Term Loan Commitment. The Term
Loans may from time to time be (i) Eurodollar Loans, (ii) ABR Loans or (iii) a
combination thereof, as determined by the Borrower and notified to the
Administrative Agent in accordance with subsections 2.6 and 2.10.
2.6 Procedure for Term Loan Borrowing. The Borrower shall
give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 10:00 A.M., New York City time, (i) three
Business Days prior to the Closing Date, if all or any part of the Term Loans
hereunder are to be initially Eurodollar Loans or (ii) one Business Day prior to
the Closing Date, otherwise), specifying (A) the amount to be borrowed, (B)
whether the borrowing is to be of Eurodollar Loans, ABR Loans or a combination
thereof and (C) if the borrowing is to be entirely or partly Eurodollar Loans,
the respective amounts of each such type of Loan and the respective lengths of
the initial Interest Periods therefor. Upon receipt of such notice the
Administrative Agent shall promptly notify each Lender thereof. Each Lender will
make the amount of its pro rata share of the Term Loans available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in subsection 9.2 prior to 1:00 P.M., New York
City time, on the Closing Date in Dollars and in funds immediately available to
the Administrative Agent. The Administrative Agent shall on such date credit the
account of the Borrower on the books of such office of the Administrative Agent
with the aggregate of the amounts made available to the Administrative Agent by
the Lenders and in like funds as received by the Administrative Agent.
2.7 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender (i) the then unpaid principal amount of each Revolving
Credit Loan of such Lender on the Termination Date (or such earlier date on
which the Revolving Credit Loans become due and payable pursuant to Section 7)
and (ii) the aggregate principal amount of the Term Loans of such Lender, in 20
consecutive quarterly installments, payable on each of the dates specified below
(each, an "Installment Date") in an amount equal to such Lender's ratable share
(based on the then outstanding principal amount of the Term Loans then held by
the Lenders) of the amount set forth opposite such date:
Installment Date Amount
---------------- ------
March 31, 2000 $2,500,000
June 30, 2000 $2,500,000
September 30, 2000 $2,500,000
December 31, 2000 $2,500,000
<PAGE>
22
Installment Date Amount
---------------- ------
March 31, 2001 $2,500,000
June 30, 2001 $2,500,000
September 30, 2001 $2,500,000
December 31, 2001 $2,500,000
March 31, 2002 $3,750,000
June 30, 2002 $3,750,000
September 30, 2002 $3,750,000
December 31, 2002 $3,750,000
March 31, 2003 $5,000,000
June 30, 2003 $5,000,000
September 30, 2003 $5,000,000
December 31, 2003 $5,000,000
March 31, 2004 $6,666,666
June 30, 2004 $6,666,666
September 30, 1994 $6,666,668
(or the then unpaid principal amount of such Term Loans, on the date that the
Term Loans become due and payable pursuant to Section 7). The Borrower hereby
further agrees to pay interest on the unpaid principal amount of the Loans from
time to time outstanding from the date hereof until payment in full thereof at
the rates per annum, and on the dates, set forth in subsection 2.12.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 9.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) the amount of each Revolving Credit Loan and Term
Loan made hereunder, the Type thereof, each Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder and (iii) both the amount
of any sum received by the Administrative Agent hereunder from the Borrower and
each Lender's share thereof.
(d) The entries made in the Register and the accounts of
each Lender maintained pursuant to subsection 2.7(b) shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded; provided, however,
that the failure of any Lender or the Administrative Agent to maintain the
Register or any such account, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable interest) the
Loans made to such Borrower by such Lender in accordance with the terms of this
Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender (i) a promissory note of the Borrower evidencing the Revolving
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23
Credit Loans of such Lender, substantially in the form of Exhibit A-1 with
appropriate insertions as to date and principal amount (a "Revolving Credit
Note"), and/or (ii) a promissory note of the Borrower evidencing the Term Loan
of such Lender, substantially in the form of Exhibit A-2 with appropriate
insertions as to date and principal amount (a "Term Note").
2.8 Optional Prepayments. The Borrower may, on the last day
of any Interest Period with respect thereto, in the case of Eurodollar Loans, or
at any time and from time to time, in the case of ABR Loans, prepay the Loans,
in whole or in part, without premium or penalty, upon at least (i) three
Business Days' irrevocable notice to the Administrative Agent, in the case of
Eurodollar Loans or (ii) one Business Day's irrevocable notice to the
Administrative Agent, in the case of ABR Loans, specifying 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. Upon receipt of any such notice the Administrative Agent shall promptly
notify each Lender thereof. In the case of prepayments of the Term Loans only,
such prepayments shall be accompanied by payment of accrued interest to such
date on the amount prepaid. Partial prepayments of the Term Loans shall be
applied to the installments of principal thereof in the inverse order of their
scheduled maturities, provided that if the Borrower so elects by notice to the
Administrative Agent, all or any portion of an optional prepayment of any amount
otherwise required to be applied to the installments of the Term Loans in the
inverse order of their maturities shall instead be applied to the installments
of the Term Loans, first in the direct order of their maturities, so long as the
installments to which such application is to be made are scheduled to be paid
within 270 days of such optional prepayment and second in inverse order of their
maturities and provided further that any optional prepayments of Term Loans made
prior to September 30, 1999 shall, be applied first to the installments due as
specified above on September 30, 1999, December 30, 1999, March 31, 2000 and
June 30, 2000 in the direct order of their maturities until all such
installments shall be paid in full and second to such installments in inverse
order of their maturities. Amounts prepaid on account of the Term Loans may not
be reborrowed. Each partial prepayment shall be in an amount equal to (i) in the
case of ABR Loans, $500,000 or a whole multiple of $100,000 in excess thereof
and (ii) in the case of Eurodollar Loans, $1,000,000 or a whole multiple of
$1,000,000 in excess thereof.
2.9 Mandatory Prepayments and Commitment Reductions. (a)
If, for any fiscal year, commencing with the fiscal year ending December 31,
2000, there shall be Excess Cash Flow for the Borrower and its Restricted
Subsidiaries, by May 31 of the following fiscal year the Borrower shall apply an
amount equal to 50% of Excess Cash Flow for such prior fiscal year to the
prepayment of the Loans and to the permanent reduction of the Revolving Credit
Commitments in accordance with subsection 2.9(d).
(b) If the Borrower or any of its Restricted Subsidiaries
shall receive any net cash proceeds from the sale or other disposition of
property, businesses or assets (except for (i) sales or other dispositions of
obsolete or worn out property and (ii) sales of inventory or other property in
the ordinary course of business) and such proceeds are not used to purchase
other assets within 12 months of receipt thereof, the Borrower shall apply an
amount equal to 100% of the portion of such net cash proceeds not so used to the
prepayment of the Loans and to the permanent reduction of the Revolving Credit
Commitments in accordance with subsection 2.9(d).
<PAGE>
24
(c) If the Borrower or any of its Restricted Subsidiaries shall
receive any proceeds from any insurance on the property of the Borrower or its
Restricted Subsidiaries (other than business interruption insurance), then the
Borrower shall apply 100% of such proceeds, to the extent they are not
reasonably promptly applied to the repair or replacement of the affected
property to which such proceeds relate (or to the payment of taxes or other
expenses related to such property or the repayment of any Indebtedness secured
thereby), to the prepayment of the Loans and to the permanent reduction of the
Revolving Credit Commitments in accordance with subsection 2.9(d).
(d) Each prepayment of the Loans and permanent reduction of the
Revolving Credit Commitments pursuant to this subsection shall be applied first,
to the permanent repayment of the Term Loans (ratably among them in accordance
with the respective aggregate then outstanding principal amounts thereof) in the
inverse order of their scheduled maturities (except that any prepayment pursuant
to subsection 2.9(b) shall be applied ratably to such remaining scheduled
installments) and second, to the permanent reduction of the Revolving Credit
Commitments and, to the extent required by subsection 2.4(c), to the prepayment
of Revolving Credit Loans. Each such reduction of the Revolving Credit
Commitments shall reduce, in inverse order, the mandatory reductions required on
each Mandatory Reduction Date except that any such reduction of Revolving Credit
Commitments pursuant to subsection 2.9(b) shall reduce pro rata the mandatory
reductions then required on each remaining Mandatory Reduction Date. Each such
prepayment shall be accompanied by payment of accrued interest on the amount
prepaid plus any amounts payable pursuant to subsection 2.19.
(e) Notwithstanding anything in this subsection to the contrary: (i)
no prepayment of Loans or Revolving Credit Commitment reduction pursuant to
either paragraph (b) or (c) above shall be required to be made until the last
Business Day of December of the then current fiscal year of the Borrower or, if
earlier, the date on which the aggregate of the amounts to be applied to such
prepayment and/or reduction in such fiscal year as provided in such paragraphs
(b) and (c) equals or exceeds $1,000,000, after which date all such amounts
received during such fiscal year shall be applied to such prepayment and/or
reduction as therein provided; and (ii) if the Borrower so elects by notice to
the Administrative Agent no later than 15 Business Days prior to any date that a
prepayment of Eurodollar Loans would be required to be made but for this clause
(ii), no prepayment of Eurodollar Loans pursuant to this subsection shall be
required to be made except on the last day(s) of the respective Interest
Period(s) therefor in effect at the time such prepayments would otherwise be
required to be made provided, that on any date that a prepayment of Eurodollar
Loans would be required to be made but for this subsection the Borrower shall
cash-collateralize such payment in a manner reasonably satisfactory to the
Administrative Agent.
2.10 Conversion and Continuation Options. (a) The Borrower
may elect from time to time to convert Eurodollar Loans to ABR Loans, by giving
the Administrative Agent at least one Business Day's prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans by giving
<PAGE>
25
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 or Interest Periods 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 (i) 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 Majority Lenders have
determined that such a conversion is not appropriate and (ii) no Loan may be
converted into a Eurodollar Loan after the date that is one month prior to the
Termination Date (in the case of Revolving Credit Loans) or the date of the
final installment of principal of the Term Loans (in the case of Term Loans).
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such (i) when any Event of
Default has occurred and is continuing and the Administrative Agent has or the
Majority Lenders have determined that such a continuation is not appropriate or
(ii) after the date that is one month prior to the Termination Date (in the case
of Revolving Credit Loans) or the date of the final installment of principal of
the Term Loans (in the case of Term Loans) and provided, further, that if the
Borrower shall fail to give such notice or if such continuation is not permitted
such Loans shall be automatically converted to ABR Loans on the last day of such
then expiring Interest Period.
2.11 Minimum Amounts and Maximum Number of Tranches. All
borrowings, conversions and continuations of Loans hereunder and all selections
of Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate principal
amount of the Loans comprising each Tranche shall be equal to $3,000,000 or a
whole multiple of $1,000,000 in excess thereof. In no event shall there be more
than ten Tranches outstanding at any time.
2.12 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Loan,
(ii) any interest payable thereon, (iii) any commitment fee or (iv) any other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), the principal of the Loans and any such
overdue interest, commitment fee or other amount shall, to the extent permitted
by applicable law, bear interest at a rate per annum which is (x) in the case of
principal, the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this subsection plus 2% or (y) in the case of any such
overdue interest, commitment fee or other amount, the rate described in
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26
paragraph (b) of this subsection plus 2%, in each case from the date of such
non-payment until such overdue principal, interest, commitment fee or other
amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
2.13 Computation of Interest and Fees. (a) Whenever it is
calculated on the basis of the Prime Rate, interest shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed, and, otherwise, interest and commitment fees shall be calculated on the
basis of a 360-day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the ABR or the Eurocurrency Reserve Requirements
shall become effective as of the opening of business on the day on which such
change becomes effective. The Administrative Agent shall as soon as practicable
notify the Borrower and the Lenders of the effective date and the amount of each
such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsection
2.12(a) or (c).
(c) If any Reference Lender shall for any reason no longer
have a Revolving Credit Commitment or any Loans, such Reference Lender shall
thereupon cease to be a Reference Lender, and if, as a result, there shall only
be one Reference Lender remaining, the Administrative Agent (after consultation
with the Borrower and the Lenders) shall, by notice to the Borrower and the
Lenders, designate another Lender as a Reference Lender so that there shall at
all times be at least two Reference Lenders.
(d) Each Reference Lender shall use its best efforts to
furnish quotations of rates to the Administrative Agent as contemplated hereby.
If any of the Reference Lenders shall be unable or shall otherwise fail to
supply such rates to the Administrative Agent upon its request, the rate of
interest shall, subject to the provisions of subsection 2.18, be determined on
the basis of the quotations of the remaining Reference Lenders or Reference
Lender.
2.14 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined in good
faith (which determination shall be conclusive and binding upon the
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
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27
(b) the Administrative Agent shall have received notice
from the Majority Lenders 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 their affected Loans during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
converted to or continued as ABR Loans and (z) any outstanding Eurodollar Loans
shall be converted, on the first day of such Interest Period, to ABR Loans.
Until such notice has been withdrawn by the Administrative Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the Borrower have
the right to convert Loans to Eurodollar Loans.
2.15 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder and any reduction of the Revolving
Credit Commitments shall be made pro rata according to the respective Applicable
Percentages of the Lenders. Except as provided in subsection 2.20(b), each
payment (including each prepayment) by the Borrower on account of principal of
and interest on (i) the Revolving Credit Loans shall be made pro rata according
to the respective outstanding principal amounts of the Revolving Credit Loans
then held by the Lenders and (ii) the Term Loans shall be made pro rata
according to the respective outstanding principal amounts of the Term Loans then
held by the Lenders. All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set off or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Administrative Agent's office
specified in subsection 9.2, in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders promptly upon
receipt in like funds as received. If any payment hereunder becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.
(b) Unless the Administrative Agent shall have been
notified in writing by any Lender prior to a borrowing that such Lender will not
make the amount that would constitute its Applicable Percentage of such
borrowing available to the Administrative Agent, the Administrative Agent may
assume that such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such amount is not made
available to the Administrative Agent by the required time on the Borrowing Date
therefor, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon at a rate equal to the daily average Federal Funds
Effective Rate for the period until such Lender makes such amount immediately
available to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this subsection
shall be conclusive in the absence of manifest error. If such
<PAGE>
28
Lender's Applicable Percentage of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the Administrative Agent shall also be entitled to recover such amount
with interest thereon at the rate per annum applicable to ABR Loans hereunder,
on demand, from the Borrower.
2.16 Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert ABR Loans to Eurodollar Loans shall
forthwith be cancelled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to ABR Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to subsection 2.19.
2.17 Requirements of Law. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Eurodollar
Loan made by it, or change the basis of taxation of payments to such
Lender in respect thereof (except for Non- Excluded Taxes covered by
subsection 2.18 and changes in taxes on or measured by the overall
net income of such Lender or its lending office for such Loan);
(ii shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption
of or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
<PAGE>
29
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, the Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Borrower (with
a copy to the Administrative Agent) of the event by reason of which it has
become so entitled. Each Lender will furnish the Borrower with a certificate
(with a copy to the Administrative Agent) setting forth the basis of the claim
and the additional amounts due, and such certificate shall be conclusive,
provided that the determination of such amounts as set forth on such certificate
is made on a reasonable basis. No Lender shall be entitled to compensation under
this subsection for any costs incurred more than six months prior to the date
such Lender delivers such certificate to the Borrower requesting compensation.
The agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
2.18 Taxes. (a) All payments made by the Borrower under
this Agreement and any Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Administrative Agent or any
Lender as a result of a present or former connection between the Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from the Administrative Agent or
such Lender having executed, delivered or performed its obligations or received
a payment under, or enforced, this Agreement or any Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under any Note,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States or a state thereof if such Lender fails to comply with
the requirements of paragraph (b) of this subsection. Whenever any Non-Excluded
Taxes are payable by the Borrower, the Borrower shall pay to or deposit with the
appropriate taxing authority in a timely manner the full amount of any such
Non-Excluded Taxes payable and as promptly as possible thereafter the Borrower
shall send to the Administrative Agent for its own account or for the account of
such Lender, as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof (or other documentation
<PAGE>
30
reasonably acceptable to the Administrative Agent or Lender). If the Borrower
fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority
or fails to remit to the Administrative Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the Administrative
Agent and the Lenders for any incremental taxes, interest or penalties that may
become payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of
the United States or a state thereof shall:
(i deliver to the Borrower and the Administrative
Agent, on or before the date of any payment by the Borrower hereunder
or under any Notes to such Lender with respect to which such Lender
requests increased payments pursuant to subsection 2.18(a), (A) two
duly completed copies of United States Internal Revenue Service Form
1001 or 4224, or successor applicable form, as the case may be, and
(B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be;
(ii deliver to the Borrower and the Administrative
Agent two further copies of any such form or certification on or
before the date that any such form or certification expires or
becomes obsolete and after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the
Borrower; and
(iii obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be requested
by the Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to subsection 9.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a Participant
such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
(c) Each Lender that is not incorporated under the laws of
the United States or a State thereof shall deliver to the Borrower and the
Administrative Agent additional forms or certifications relating to the matters
provided for in this subsection as may be reasonably requested by the Borrower.
<PAGE>
31
2.19 Indemnity. The Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (a) default by the Borrower in
making a borrowing of, conversion into or continuation of Eurodollar Loans after
the Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment of a Eurodollar Loan after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurodollar Loans on a day which is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of such Interest Period (or, in the case of a failure
to borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin
included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Bank on such amount
by placing such amount on deposit for a comparable period with leading banks in
the interbank eurodollar market. This covenant shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.20 Change of Lending Office; Replacement or Prepayment of
Lenders. (a) Each Lender agrees that if it makes any demand for payment under
subsection 2.17 or 2.18(a), or if any adoption or change of the type described
in subsection 2.16 shall occur with respect to it, it will use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its sole discretion) to designate a different lending office if
the making of such a designation would reduce or obviate the need for the
Borrower to make payments under subsection 2.17 or 2.18(a), or would eliminate
or reduce the effect of any adoption or change described in subsection 2.16.
(b) If the Borrower shall be required to pay any additional
amounts or other payments in accordance with subsection 2.17 or 2.18(a) or if
any Lender shall, in accordance with subsection 2.16, no longer be obligated to
make or maintain Eurodollar Loans hereunder, the Borrower may, at its own
expense and in its sole discretion, (i) require such Lender to transfer or
assign, in whole or in part, without recourse (in accordance with subsection
9.6), all or part of its interests, rights and obligations under this Agreement
to another Person (provided that the Borrower, with the full cooperation of such
Lender, can identify a Person which is ready, willing and able to be an Assignee
with respect thereto) which shall assume such assigned obligations (which
Assignee may be another Lender, if such Assignee Lender accepts such assignment)
or (ii) so long as no Default or Event of Default shall have occurred and be
continuing, terminate the Revolving Credit Commitment of such Lender and prepay
all outstanding Loans of such Lender; provided that (A) the Assignee or the
Borrower, as the case may be, shall have paid to such Lender in immediately
available funds the principal of and interest accrued to the date of such
<PAGE>
32
payment on the Loans made by it hereunder and all other amounts owed to it
hereunder, including, without limitation, any amounts owing pursuant to
subsection 2.19 and, in the case of any such assignment, any amounts that would
be owing under said subsection if such Loans were prepaid on the date of such
assignment, and (B) such assignment or termination of the Revolving Credit
Commitment, if any, of such Lender and prepayment of Loans does not conflict
with any law, rule or regulation or order of any Governmental Authority.
2.21 Commitment Increases. (a) In the event that at any
time prior to June 30, 1999 the Borrower wishes to increase the aggregate
Revolving Credit Commitments, it shall notify the Administrative Agent and the
Lenders of the amount of such proposed increase (such notice, a "Commitment
Increase Offer"). Each Commitment Increase Offer shall offer the Lenders which
have Revolving Credit Commitments the opportunity to participate in the
increased Revolving Credit Commitments ratably in accordance with their
respective Applicable Percentages. In the event that any Lender (each, a
"Declining Lender") shall fail to accept in writing a Commitment Increase Offer
within 10 Business Days after receiving notice thereof, all or any portion of
the proposed increase in the Revolving Credit Commitments offered to the
Declining Lenders (the aggregate of such offered amounts, the "Declined Amount")
may instead be allocated to any one or more additional banks, financial
institutions or other entities pursuant to paragraph (b) below and/or to any one
or more existing Lenders pursuant to paragraph (c)(ii) below.
(b) Any additional bank, financial institution or of other
entity which, with the consent of the Borrower and the Administrative Agent
(which consent, in the case of the Administrative Agent, shall not be
unreasonably withheld), elects to become a party to this Agreement and obtain a
Revolving Credit Commitment in an amount equal to all or any portion of a
Declined Amount shall execute a New Lender Supplement with the Borrower and the
Administrative Agent, substantially in the form of Exhibit H-1, 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 I shall be deemed to be amended to add the name and Revolving Credit
Commitment of such New Lender.
(c) Any Lender which (i) accepts a Commitment Increase
Offer pursuant to subsection 2.21(a) and/or (ii) with the consent of the
Borrower, elects to increase its Revolving Credit Commitment by an amount equal
to all or any portion of a Declined Amount shall, in each case, execute a
Commitment Increase Supplement with the Borrower and the Administrative Agent,
substantially in the form of Exhibit H-2, whereupon such Lender shall be bound
by and entitled to the benefits of this Agreement with respect to the full
amount of its Revolving Credit Commitment as so increased, and Schedule I shall
be deemed to be amended to so increase the Revolving Credit Commitment of such
Lender.
(d) If, on the date upon which a bank, financial
institution or other entity becomes a New Lender pursuant to subsection 2.21(b)
or upon which a Lender's Revolving Credit Commitment is increased pursuant to
subsection 2.21(a) or (c), there is an unpaid principal amount of Revolving
Credit Loans, the Borrower shall borrow Revolving Credit Loans from such Lender
in an amount determined by reference to the amount of each Type of Revolving
Credit Loan (and, in the case of Eurodollar Loans, of each Tranche) which would
<PAGE>
33
then have been outstanding from such Lender if (i) each such Type or Tranche had
been borrowed on the date such bank, financial institution or other entity
became a Lender or such Lender's Revolving Credit Commitment was increased, as
the case may be, in each case after giving effect to such transaction and (ii)
the aggregate amount from time to time of each such Type or Tranche requested to
be so borrowed had been increased to the extent necessary to give effect, with
respect to such Lender, to such additional borrowing. Any Eurodollar Loan
borrowed pursuant to the preceding sentence shall bear interest at such rate or
rates and for such period or periods as may be agreed upon between the Borrower
and such Lender.
(e) Notwithstanding anything to the contrary in this
subsection, (i) in no event shall any transaction effected pursuant to this
subsection cause the aggregate amount of the increases in the Revolving Credit
Commitments pursuant to this subsection to exceed $50,000,000, (ii) the
aggregate amount of any increase in Revolving Credit Commitments pursuant to
subsection 2.21(b) or (c)(ii) shall be limited to the relevant Declined Amount,
(iii) each Commitment Increase Offer shall be for an amount equal to not less
than $20,000,000 and, unless agreed to by the Borrower, no increase in Revolving
Credit Commitments agreed to, accepted or elected in response to any Commitment
Increase Offer may become effective unless the aggregate amount of increases so
agreed to, accepted or elected in response to such Commitment Increase Offer is
not less than $20,000,000 and (iv) no Lender shall have any obligation to
increase its Revolving Credit Commitment unless it agrees to do so in its sole
discretion.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans and issue or participate in the
Letters of Credit, the Borrower hereby represents and warrants to the
Administrative Agent and each Lender that:
3.1 Financial Condition. The consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as at December 31, 1995 and the
related consolidated statements of income and of cash flows for the fiscal year
ended on such date, reported on by Price Waterhouse LLP, copies of which have
heretofore been furnished to each Lender, present fairly in all material
respects the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the fiscal year then ended. The
unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at June 30, 1996 and the related unaudited consolidated
statements of income and of cash flows for the six-month period ended on such
date, certified by a Responsible Officer, copies of which have heretofore been
furnished to each Lender, present fairly in all material respects the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the six-month period then ended (subject
to normal year-end audit adjustments and footnote disclosure). All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants or Responsible Officer,
as the case may be, and as disclosed therein). Neither the Borrower nor any of
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34
its consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Guarantee Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or foreign currency
swap or exchange transaction, which is not reflected in the foregoing statements
or in the notes thereto. Except as set forth on Schedule 3.1, during the period
from June 30, 1996 to and including the date hereof there has been no sale,
transfer or other disposition by the Borrower or any of its consolidated
Subsidiaries of any material part of its business or property and no purchase or
other acquisition of any business or property (including any capital stock of
any other Person) material in relation to the consolidated financial condition
of the Borrower and its consolidated Subsidiaries at June 30, 1996.
3.2 No Change. Since December 31, 1995 there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
3.3 Corporate Existence; Compliance with Law. Each of the
Borrower and its Restricted Subsidiaries (a) is duly organized and validly
existing under the laws of the jurisdiction of its organization, (b) has the
requisite corporate or other power and authority, and the legal right, to own
and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification and (d) is in compliance with all Requirements of Law, except to
the extent that the inaccuracy of any of the statements set forth in this
subsection could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
3.4 Corporate Power; Authorization; Enforceable
Obligations. The Borrower has the corporate power and authority, and the legal
right, to make, deliver and perform the Loan Documents to which it is a party
and to borrow hereunder and has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of this Agreement, any
Notes and to authorize the execution, delivery and performance of the Loan
Documents to which it is a party. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Person is required in connection
with the borrowings hereunder or with the execution, delivery, performance,
validity or enforceability of the Loan Documents to which the Borrower is a
party, except for filings of appropriate counterparts of this Agreement and
other information with the Securities and Exchange Commission as required by
applicable law. This Agreement has been, and each other Loan Document to which
it is a party will be, duly executed and delivered on behalf of the Borrower.
This Agreement constitutes, and each other Loan Document to which it is a party
when executed and delivered will constitute, a legal, valid and binding
obligation of the Borrower enforceable against the Borrower in accordance with
its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
3.5 No Legal Bar. The execution, delivery and performance
of the Loan Documents to which the Borrower is a party, the borrowings hereunder
and the use of the proceeds thereof will not violate any Requirement of Law or
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35
Contractual Obligation of the Borrower or of any of its Restricted Subsidiaries,
except for any such violation that could not reasonably be expected to have a
Material Adverse Effect, and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or revenues
pursuant to any such Requirement of Law or Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Restricted Subsidiaries or against any of its or their respective
properties or revenues (a) which is so pending or threatened prior to the
Closing Date with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (b) which could reasonably be
expected to have a Material Adverse Effect.
3.7 No Default. Neither the Borrower nor any of its
Restricted Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect which could reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred and
is continuing.
3.8 Ownership of Property; Liens. Each of the Borrower and
its Restricted 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, and none of such
property is subject to any Lien except as permitted by subsection 6.3.
3.9 Intellectual Property. The Borrower and each of its
Restricted Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property which could
reasonably be expected to have a Material Adverse Effect. To the knowledge of
the Borrower, the use of such Intellectual Property by the Borrower and its
Restricted Subsidiaries does not infringe on the rights of any Person, except
for such claims and infringements that, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
3.10 Taxes. Each of the Borrower and its Restricted
Subsidiaries has filed or caused to be filed all tax returns which, to the
knowledge of the Borrower, are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than any taxes, fees or
other charges the amount or validity of which are currently being contested in
good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Borrower or its
Restricted Subsidiaries, as the case may be); no tax Lien has been filed, and,
to the knowledge of the Borrower, no claim is being asserted, with respect to
any such tax, fee or other charge.
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36
3.11 Federal Regulations. No part of the proceeds of any
Loans will be used for any purpose that would result in a violation of
Regulation G or Regulation U of the Board of Governors of the Federal Reserve
System as now and from time to time hereafter in effect.
3.12 ERISA. (i) During the five-year period prior to the
date on which this representation is made or deemed made, neither a Reportable
Event nor an "accumulated funding deficiency" (within the meaning of Section 412
of the Code or Section 302 of ERISA) has occurred with respect to any Single
Employer Plan, (ii) each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code (except that, with respect to any
Multiemployer Plan, such representation is only made to the Borrower's
knowledge), (iii) no termination of a Single Employer Plan has occurred, (iv) no
Lien on the assets of the Borrower or any Commonly Controlled Entity in favor of
the PBGC or a Plan has arisen, (v) neither the Borrower nor any Commonly
Controlled Entity has had nor, to the Borrowers knowledge, expects to have a
complete or partial withdrawal from any Multiemployer Plan, and (vi) no such
Multiemployer Plan is in Reorganization or Insolvent, except for the occurrence
of any such event or, in the case of clause (ii), any failure so to comply, that
could reasonably be expected to result in a Material Adverse Effect. The present
value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by an amount which could be reasonably expected to result in a Material Adverse
Effect.
3.13 Investment Company Act; Other Regulations. The
Borrower is not an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended. The Borrower is not subject to regulation under any Federal or State
statute or regulation (other than Regulation X of the Board of Governors of the
Federal Reserve System) which limits its ability to incur Indebtedness.
3.14 Subsidiaries. All of the Restricted Subsidiaries of
the Borrower in existence on the date hereof are listed on Part I of Schedule
3.14, and all of the Unrestricted Subsidiaries of the Borrower in existence on
the date hereof are listed on Part II of Schedule 3.14.
3.15 Purpose of Loans. The proceeds of the Term Loans shall
be used by the Borrower to refinance Indebtedness under the Existing Credit
Agreement. The proceeds of the Revolving Credit Loans shall be used by the
Borrower (i) to refinance Indebtedness under the Existing Credit Agreement, (ii)
to make acquisitions and (iii) for general corporate purposes, including the
repurchase of shares of Capital Stock and/or evidences of Indebtedness, working
capital and capital expenditures.
3.16 Environmental Matters. Other than exceptions to any of
the following that could not, individually or in any aggregation, reasonably be
expected to give rise to a Material Adverse Effect: the Borrower and its
Restricted Subsidiaries comply and have complied with all applicable
Environmental Laws, and possess and comply with and have possessed and complied
<PAGE>
37
with all Environmental Permits required under such laws; there are no past,
present, or anticipated future events, conditions, circumstances, practices,
plans, or legal requirements that, to its knowledge, could prevent, or
materially increase the burden on the Borrower and its Restricted Subsidiaries
of, compliance with applicable Environmental Laws or of obtaining, renewing, or
complying with all Environmental Permits required under such laws; the Borrower
and its Restricted Subsidiaries have received no notice of any violation of, or
potential liability under, any Environmental Law; and there are and have been no
Materials of Environmental Concern or other conditions at any property owned,
operated, or otherwise used by the Borrower or any of its Restricted
Subsidiaries now or, to its knowledge, in the past, or at any other location,
that could give rise to liability of the Borrower or any of its Restricted
Subsidiaries under any Environmental Law.
3.17 Senior Indebtedness. The Loans to the Borrower
outstanding on the Closing Date are, and all other Loans to the Borrower, when
made, will constitute "Senior Indebtedness" under and as defined in the 6-3/4%
Debenture Indenture.
3.18 Certain Documents. The Borrower has delivered to each
Lender a complete, correct and current copy of the Management Agreement, the
Voting Agreement, the 6-3/4% Debenture Indenture and any other document the
Administrative Agent shall reasonably request.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The effectiveness of this
Agreement and the agreement of each Lender to make the extensions of credit
requested to be made by it are subject to the satisfaction, immediately prior to
or concurrently with the foregoing on the Closing Date, of the following
conditions precedent:
(a) Prepayment of Existing Loans. The Borrower shall have
prepaid in full the Existing Loan, shall have paid in full all
interest and fees accrued through the Closing Date under the Existing
Credit Agreement.
(b) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower, with a counterpart for each
Lender and (ii) the other Loan Documents, each executed and delivered
by a duly authorized officer of the parties thereto, with a
counterpart or a conformed copy for each Lender.
(c) Other Documents. The Administrative Agent shall have
received, with a copy for each Lender, true and correct copies,
certified as to authenticity by the Borrower, of such documents or
instruments as may be reasonably requested by the Administrative
Agent, including, without limitation, a copy of the 6-3/4% Debenture
Indenture and any other debt instrument, security agreement or other
material contract to which the Borrower or its Subsidiaries may be a
party.
(d) Borrowing Certificate. The Administrative Agent shall
have received, with a copy for each Lender, a certificate of the
Borrower, dated the Closing Date,
<PAGE>
38
substantially in the form of Exhibit F, with appropriate insertions
and attachments, satisfactory in form and substance to the
Administrative Agent, executed by the President or any Vice President
and the Secretary or any Assistant Secretary of the Borrower.
(e) Corporate Proceedings of the Borrower. The
Administrative Agent shall have received, with a copy for each
Lender, a copy of the resolutions, in form and substance satisfactory
to the Administrative Agent, of the Board of Directors of the
Borrower authorizing (i) the execution, delivery and performance of
this Agreement and the other Loan Documents to which it is a party
and (ii) the borrowings contemplated hereunder certified by the
Secretary or an Assistant Secretary of the Borrower as of the Closing
Date, which certificate shall be in form and substance satisfactory
to the Administrative Agent and shall state that the resolutions
thereby certified have not been amended, modified, revoked or
rescinded.
(f) Borrower Incumbency Certificate. The Administrative
Agent shall have received, with a copy for each Lender, a Certificate
of the Borrower, dated the Closing Date, as to the incumbency and
signature of the officers of the Borrower executing any Loan Document
satisfactory in form and substance to the Administrative Agent,
executed by the President or any Vice President and the Secretary or
any Assistant Secretary of the Borrower.
(g) Corporate Proceedings of Subsidiaries. The
Administrative Agent shall have received, with a copy for each
Lender, a copy of the resolutions, in form and substance satisfactory
to the Administrative Agent, of the Board of Directors of each
Subsidiary of the Borrower which is a party to a Loan Document
authorizing the execution, delivery and performance of the Loan
Documents to which it is a party and certified by the Secretary or an
Assistant Secretary of each such Subsidiary as of the Closing Date,
which certificate shall be in form and substance satisfactory to the
Administrative Agent and shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded.
(h) Subsidiary Incumbency Certificates. The Administrative
Agent shall have received, with a copy for each Lender, a certificate
of each Subsidiary of the Borrower which is a Loan Party, dated the
Closing Date, as to the incumbency and signature of the officers of
such Subsidiaries executing any Loan Document, satisfactory in form
and substance to the Administrative Agent, executed by the President
or any Vice President and the Secretary or any Assistant Secretary of
each such Subsidiary.
(i) Corporate Documents. The Administrative Agent shall
have received, with a copy for each Lender, true and complete copies
of the certificate of incorporation and by-laws of the Borrower,
certified as of the Closing Date as complete and correct copies
thereof by the Secretary or an Assistant Secretary of the Borrower.
(j) Fees. The Administrative Agent shall have received the
fees to be received on the Closing Date referred to in the Fee
Letter, between the Borrower and Chase.
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39
(k) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Lender, the executed legal
opinions of Debevoise & Plimpton and __________, counsel to the
Borrower and its Restricted Subsidiaries, substantially in the form
of Exhibits D and E. Such legal opinions shall cover such other
matters incident to the transactions contemplated by this Agreement
as the Administrative Agent may reasonably require.
(l) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other legal matters
in connection with the transactions contemplated by this Agreement
and the other Loan Documents shall be satisfactory in form and
substance to the Administrative Agent, and the Administrative Agent
shall have received such other documents and legal opinions in
respect of any aspect or consequence of the transactions contemplated
hereby or thereby as it shall reasonably request.
4.2 Conditions to Each Loan. The agreement of each Lender
to make any extension of credit requested to be made by it on any date
(including, without limitation, its initial extension of credit) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower or any other Loan
Party in or pursuant to the Loan Documents shall be true and correct
in all material respects on and as of such date as if made on and as
of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extension of credit requested to be made on such date.
(c) Compliance with 6-3/4% Debenture Indenture. The making
of such extensions of credit shall not result in a violation of the
6-3/4% Debenture Indenture.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this subsection have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving
Credit Commitments remain in effect or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall and (except in the case of delivery of financial information, reports and
notices) shall cause each of its Restricted Subsidiaries to:
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40
5.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 120 days
after the end of each fiscal year of the Borrower, a copy of the
consolidated balance sheet of the Borrower and its Restricted
Subsidiaries as at the end of such year and the related consolidated
statements of income and retained earnings and of cash flows for such
year, setting forth in each case in comparative form the figures for
the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, by Price Waterhouse LLP or other independent certified
public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than
60 days after the end of each of the quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its Restricted Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income
and retained earnings and of cash flows of the Borrower and its
Restricted Subsidiaries for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in each
case in comparative form the figures for the previous year, certified
by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments and the
absence of footnote disclosure);
all such financial statements shall be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods reflected
therein and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein).
5.2 Certificates; Other Information. Furnish to each
Lender:
(a) concurrently with the delivery of the financial
statements referred to in subsection 5.1(a), a certificate of the
independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default, except
as specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 5.1(a) and (b), a certificate
of a Responsible Officer stating that, to the best of such Officer's
knowledge, during such period no Default or Event of Default has
occurred and is continuing except as specified in such certificate
and demonstrating compliance with the financial covenants in a manner
reasonably satisfactory to the Administrative Agent;
(c) not later than thirty days prior to the end of each
fiscal year of the Borrower, a copy of the operating budget and cash
flow budget of the Borrower and its Restricted Subsidiaries for the
succeeding fiscal year;
(d) promptly after the same are sent, copies of all
financial statements, reports and proxy statements which the Borrower
sends to its stockholders, and promptly after the same are filed,
<PAGE>
41
copies of all financial statements, registration statements and
publicly available reports which the Borrower has filed with, the
Securities and Exchange Commission or any successor or analogous
Governmental Authority; and
(e) promptly, such additional financial and other
information as any Lender may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be, or except
where the failure to pay, discharge or otherwise satisfy such obligations could
not be reasonably expected to have a Material Adverse Effect.
5.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now conducted by the
Borrower and its Restricted Subsidiaries and preserve, renew and keep in full
force and effect its corporate existence and take all reasonable action to
maintain all material rights, privileges and franchises necessary or desirable
in the normal conduct of its business except as otherwise permitted pursuant to
subsection 6.5; comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition
(ordinary wear and tear expected); maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amounts and
against at least such risks as are usually insured against in the same general
area by companies engaged in the same or a similar business; and furnish to each
Lender, upon written request, full information as to the insurance carried.
5.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and upon reasonable advance notice and as often as may reasonably be
desired and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries.
5.7 Notices. Promptly give notice to the Administrative
Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of the Borrower or any of its Subsidiaries of
which the Borrower or such Subsidiary has knowledge or (ii)
<PAGE>
42
litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority, which in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have
a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or
any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect;
(d) the following events, as soon as possible and in any
event within 30 days after the Borrower knows thereof: (i) the
occurrence or expected occurrence of any Reportable Event with
respect to any Single Employer Plan, a failure to make any required
contribution to a Plan, the creation of any Lien on the assets of the
Borrower or any Commonly Controlled Entity in favor of the PBGC or a
Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan if, as a result of any such
event, the Borrower would be reasonably expected to incur a liability
in excess of $1,000,000 or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any
Commonly Controlled Entity or any Multiemployer Plan with respect to
the withdrawal from, or the terminating, Reorganization or Insolvency
of, any Plan if, as a result of any such event, the Borrower would be
reasonably expected to incur a liability in excess of $1,000,000; and
(e) any Person becoming a Restricted Subsidiary;
(f) any development or event which has had or could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
5.8 Additional Guarantors. With respect to any Person that,
subsequent to the Closing Date, becomes a Restricted Subsidiary, cause such new
Restricted Subsidiary which is a Domestic Subsidiary to become a party to the
Guarantee pursuant to documentation which is in form and substance satisfactory
to the Administrative Agent and, if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to such
documentation, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
5.9 Unrestricted Subsidiaries; Maintenance of Separate
Corporate Identity.
(a) The Borrower will deliver to the Administrative Agent
(with sufficient copies for each of the Lenders) a notice as to the
organization or acquisition of each Unrestricted Subsidiary promptly
following such organization or acquisition together with a
certificate of a Responsible Officer of the Borrower certifying that
attached thereto are true copies of (i) the resolutions duly adopted
by the Board of Directors of the Borrower designating such Subsidiary
as an Unrestricted Subsidiary and (ii) all agreements, instruments
and other documents relating to the organization or acquisition of
such Unrestricted Subsidiary.
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43
(b) The Borrower will, promptly upon receipt thereof by the
Borrower or any of its Subsidiaries, deliver to the Administrative
Agent (with sufficient copies for each of the Lenders) a true and
complete copy of each agreement, instrument or other document
evidencing Indebtedness or other material obligations of each
Unrestricted Subsidiary and each other material agreement, instrument
or other document (including, without limitation, agreements,
instruments and other documents in respect of acquisitions) entered
into by each Unrestricted Subsidiary.
(c) The Borrower will cause the management, business and
affairs of each of the Borrower and its Subsidiaries to be conducted
in such a manner so that each of the Borrower and its Subsidiaries
will be perceived and treated as a legal entity separate and distinct
from each other. Without in any way limiting the other provisions of
this subsection, the Borrower will not permit any Restricted
Subsidiary to, directly or indirectly: (i) make any Investment in an
Unrestricted Subsidiary, (ii) dispose of any of its Properties to an
Unrestricted Subsidiary, (iii) merge into or consolidate with or
purchase or acquire any Properties from an Unrestricted Subsidiary or
(iv) enter into any other transaction directly or indirectly with or
for the benefit of an Unrestricted Subsidiary (including, without
limitation, guarantees and assumptions of obligations of an
Unrestricted Subsidiary); provided that it is understood that the
Borrower as the "common parent" of its Restricted Subsidiaries and
Unrestricted Subsidiaries may file a consolidated tax return on
behalf of itself and its Subsidiaries and such filing shall not be
deemed to violate the provisions of this subsection.
(d) The Borrower will allocate corporate general and
administrative expenses between it, the Restricted Subsidiaries and
the Unrestricted Subsidiaries in accordance with customary and
reasonable business practices and GAAP consistently applied. Without
in any way limiting the other provisions of this subsection, the
Borrower will not permit any Restricted Subsidiary to, directly or
indirectly, pay or incur any corporate general and administrative
expenses on behalf of any Unrestricted Subsidiary.
5.10 Sinking Fund Payment Credits. the Borrower will at all
times exercise its option under Section 1402 of the 6 3/4% Debenture Indenture
(and take all action as shall be necessary to give effect to such exercise) to
apply all 6 3/4% Debentures that shall have been redeemed or converted as a
credit against the mandatory sinking fund payments required from time to time by
said Indenture
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving
Credit Commitments remain in effect or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall not, and (except with respect to subsection 6.1) shall not permit any of
its Restricted Subsidiaries to, directly or indirectly:
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44
6.1 Financial Condition Covenants.
(a) Maintenance of Total Debt Ratio. Permit the Total Debt
Ratio at any time during any period set forth below to be greater
than the ratio set forth opposite such period below:
Period Ratio
------ -----
Closing Date - 12/30/97 5.25:1
12/31/97 - 12/30/98 4.75:1
12/31/98 - Thereafter 4.00:1
(b) Maintenance of Total Interest Coverage Ratio. Permit
the Total Interest Coverage Ratio at any time to be less than 2.00:1.
(c) Maintenance of Total Fixed Charge Coverage Ratio.
Permit the Total Fixed Charge Coverage Ratio at any time to be less
than 1.10:1.
6.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under this Agreement;
(b) Indebtedness of the Borrower to any Restricted
Subsidiary and of any Restricted Subsidiary to the Borrower or any
other Restricted Subsidiary;
(c) Indebtedness of the Borrower and any of its Restricted
Subsidiaries incurred to finance the acquisition of fixed or capital
assets (whether pursuant to a loan, a Financing Lease or otherwise)
not exceeding $5,000,000 in aggregate principal amount at any one
time outstanding and any refinancings, refundings, renewals or
extensions thereof (provided that the principal amount of such
Indebtedness shall at no time exceed 100% of the original acquisition
cost of such assets plus any costs associated with the financing or
refinancing thereof);
(d) Indebtedness outstanding on the date hereof and listed
on Schedule 6.2 and any refinancings, refundings, renewals or
extensions thereof (provided that the principal amount of such
Indebtedness is not increased by an amount greater than costs
associated with any such refinancing, refundings, renewals or
extensions);
(e) Indebtedness of a Person which becomes a Restricted
Subsidiary after the date hereof and any refinancings, refundings,
renewals or extensions thereof, provided that (i) such Indebtedness
existed at the time such Person became a Restricted Subsidiary (or,
if later, at the time it acquired the assets of a business pursuant
to subsection 6.8(c)) and was not created in anticipation thereof and
(ii) immediately after giving effect to the acquisition of such
Person by the Borrower no Default or Event of Default shall have
occurred and be continuing;
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45
(f) Permitted Additional Indebtedness; and
(g) additional Indebtedness not exceeding $10,000,000 in
aggregate principal amount at any one time outstanding.
6.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet subject to penalties for
non-payment or which are being contested in good faith by appropriate
proceedings, provided that, if contested, adequate reserves with
respect thereto are maintained on the books of the Borrower or its
Restricted Subsidiaries, as the case may be, in conformity with GAAP
(or, in the case of Foreign Subsidiaries, generally accepted
accounting principles in effect from time to time in their respective
jurisdictions of incorporation);
(b) Liens imposed by law, such as landlords', carriers',
warehousemen's, materialmen's and mechanics' liens, or Liens arising
out of judgments or awards against the Borrower or any of its
Restricted Subsidiaries with respect to which the Borrower or such
Restricted Subsidiary at the time shall currently be prosecuting an
appeal or proceedings for review in good faith and by proper
proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount and which do
not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of
the business taken as a whole of the Borrower or such Restricted
Subsidiary;
(f) Liens securing Indebtedness of the Borrower and its
Restricted Subsidiaries permitted by subsection 6.2(c) incurred to
finance the acquisition of fixed or capital assets, provided that (i)
such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not
at any time encumber any property other than the property financed by
such Indebtedness, (iii) the amount of Indebtedness secured thereby
is not increased and (iv) the principal amount of Indebtedness
secured by any such Lien shall at no time exceed 100% of the original
purchase price of such property at the time it was acquired plus any
financing or refinancing costs;
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46
(g) Liens in existence on the date hereof listed on
Schedule 6.3, securing Indebtedness permitted by subsection 6.2(d),
provided that no such Lien is spread to cover any additional property
after the Closing Date and that the amount of Indebtedness secured
thereby is not increased except as permitted by subsection 6.2(d);
(h) Liens on assets acquired by a Restricted Subsidiary
after the date hereof or on the property or assets of a Person which
becomes a Restricted Subsidiary after the date hereof securing
Indebtedness permitted by subsection 6.2(c) or 6.2(e), respectively,
provided that (i) such Liens exist at the time such assets are
acquired or at the time such Person becomes a Restricted Subsidiary,
as the case may be, and are not created in anticipation thereof, (ii)
any such Lien is not spread to cover any property or assets of such
Person after the time such Person becomes a Restricted Subsidiary or
such assets are acquired, and (iii) the amount of Indebtedness
secured thereby is not increased;
(i) Liens on the Capital Stock of Unrestricted
Subsidiaries securing obligations of Unrestricted Subsidiaries; and
(j) Liens (not otherwise permitted hereunder) so long as
the greater of (i) the aggregate outstanding principal amount of the
obligations secured thereby and (ii) the aggregate fair market value
of the assets subject thereto does not exceed $5,000,000 at any one
time.
6.4 Limitation on Guarantee Obligations. Create, incur,
assume or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof
and listed on Schedule 6.4;
(b) Guarantee Obligations of a Person which becomes a
Restricted Subsidiary after the date hereof, provided that such
Guarantee Obligations exist at the time such Person becomes a
Restricted Subsidiary (or, if later, at the time it acquired the
assets of a business pursuant to subsection 6.8(c)) and are not
created in anticipation thereof,
(c) Guarantee Obligations entered into in the ordinary
course of its business by the Borrower or any Restricted Subsidiary
of obligations of any of the Borrower or its Restricted Subsidiaries,
which obligations are not prohibited by this Agreement;
(d) the Guarantee; and
(e) additional Guarantee Obligations in respect of
obligations not exceeding $10,000,000 in aggregate principal amount
at any one time outstanding.
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47
6.5 Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets, except:
(a) any Restricted Subsidiary of the Borrower may be
merged or consolidated with or into the Borrower (provided that the
Borrower shall be the continuing or surviving corporation) or with or
into any one or more wholly owned Restricted Subsidiaries of the
Borrower (provided that the wholly owned Restricted Subsidiary or
Restricted Subsidiaries shall be the continuing or surviving Person);
(b) any Restricted Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any wholly owned
Restricted Subsidiary of the Borrower;
(c) the Borrower or any of its Restricted Subsidiaries may
enter into a merger with any Person engaged in the commercial radio
business (which shall be deemed to include, without limitation,
programming, production and distribution) or any other business
related to the foregoing, provided that the fair market value of such
Persons (for all such mergers), when added to the aggregate
consideration paid in connection with all acquisitions consummated
pursuant to subsection 6.8(c), shall not exceed $50,000,000 if the
Total Debt Ratio is greater than or equal to 4.75 to 1.0, and,
provided further that the Borrower or a Restricted Subsidiary, as the
case may be, shall be the surviving corporation and that both prior
to and after giving effect to such merger there shall exist no
Default or Event of Default hereunder and the Borrower shall have
delivered a certificate (with such supporting detail and calculations
as may be reasonably requested by the Administrative Agent) from a
Responsible Officer so stating to the Administrative Agent; and
(d) as permitted by subsection 6.6.
6.6 Limitation on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Restricted Subsidiary,
issue or sell any shares of such Restricted Subsidiary's Capital Stock to any
Person other than the Borrower or any wholly owned Restricted Subsidiary,
except:
(a) the sale or other disposition of any property in the
ordinary course of business;
(b) any sale, assignment, transfer or other disposition of
Capital Stock of any Unrestricted Subsidiary;
(c) the sale or other disposition of any other property,
business or asset with an aggregate fair market value not to exceed
$5,000,000 so long as (i) the consideration received shall be an
amount at least equal to the fair market value thereof: (ii) at least
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48
90% of the consideration received shall be cash; (iii) the proceeds
of such sale or other disposition are applied as required by
subsection 2.9(b); and (iv) no Default or Event of Default shall have
occurred and be continuing or would result therefrom; and
(d) as permitted by subsection 6.5(b).
6.7 Limitation on Restricted Payments. Declare or pay any
dividend (other than dividends payable solely in Capital Stock of the Borrower)
on, or make any payment or prepayment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
the Borrower or any Restricted Subsidiary or any warrants or options to purchase
any such Capital Stock or any of the 6-3/4% Debentures, or make any payment of
management or similar fees (including, without limitation, Management Fees, but
excluding all expenses payable to Infinity, in its capacity as "Manager", under
Section 1.6 of the Management Agreement) to Infinity or any other Affiliate of
the Borrower (other than to any employee, officer or director of the Borrower or
its Subsidiaries in connection with the performance of such employee's,
officer's or director's duties in such capacity), whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Restricted Subsidiary (such declarations, payments, setting apart,
purchases, redemptions, defeasances, retirements, acquisitions and distributions
being herein called "Restricted Payments"), except that (a) any Restricted
Subsidiary may make Restricted Payments to the Borrower, (b) the Borrower may
make Restricted Payments (i) for the purpose of cashing out any fractional
shares of Capital Stock following the payment of a dividend payable in Capital
Stock of the Borrower or the conversion of any of its convertible debt into its
Capital Stock and (ii) to redeem the Borrower's outstanding Class Action
Warrants when and to the extent required by the terms thereof, (c) the Borrower
and its Restricted Subsidiaries may make Restricted Payments (i) during the
period from and including the Closing Date to and including September 29, 1999
in an aggregate amount which, when added to the aggregate amount of any
Investments in Unrestricted Subsidiaries made during such period as permitted by
subsection 6.8(g), is not in excess of the First Unrestricted Basket and (ii)
during the period from and including September 30, 1999 to and including the
Termination Date in an aggregate amount which, when added to the aggregate
amount of any Investments in Unrestricted Subsidiaries made during such period
as permitted by subsection 6.8(g), is not in excess of the Second Unrestricted
Basket, and (d) the Borrower may make scheduled payments of interest on the
6-3/4% Debentures to the extent required by the 6-3/4% Debenture Indenture;
provided that, prior to and after giving effect to each such Restricted Payment
described in clauses (c) and (d) above, there shall exist no Default or Event of
Default hereunder and the Borrower shall have delivered a certificate (with such
supporting detail and calculations as may be reasonably requested by the
Administrative Agent) from a Responsible Officer so stating, and (e) (i) the
issuance and delivery to INI of Incentive Warrants pursuant to Section 2.3 of
the Management Agreement and (ii) subject in each case to the terms of the
Management Services Subordination Agreement and provided that, both prior to and
after giving effect to each such payment, no Event of Default pursuant to
Sections 7(a), (c) (solely in the case of an Event of Default pursuant to
subsection 6.1, and, in such case, only if the Majority Lenders following such
<PAGE>
49
an Event of Default shall determine in their sole discretion to prohibit any
payment provided for in clause (x) or (y) below) or (f) shall have occurred and
be continuing: (x) cash payments of Management Fees to Infinity at the times and
in the amounts provided for by Section 2.1 of the Management Agreement in
respect of each fiscal year and (y) a cash payment of Management Fees to
Infinity at the times and in the amounts provided for by Section 2.2 of the
Management Agreement, so long as, in the case of clause (y): (I) at least three
Business Days (but not more than 30 Business Days) prior to the date of such
payment, the Borrower shall have delivered to the Administrative Agent the
financial statements required to be delivered for such fiscal year pursuant to
Section 5.1(a) and a certificate of a Responsible Officer of the Borrower
setting forth a computation of the Excess Cash Flow for the prior fiscal year
and describing the amount of such Management Fees to be paid and (II) such
payment shall be made promptly following any prepayment required to be made
under Section 2.9(a) with respect to Excess Cash Flow for such prior fiscal
year.
6.8 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in (each, an
"Investment") any Person, except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) purchases of shares of the Capital Stock of any Person
engaged in the commercial radio business (which shall be deemed to
include, without limitation, programming, production and
distribution) or any other business related to the foregoing or
purchases of the assets constituting all or any portion of any such
business owned by any other Person, provided that the aggregate
consideration for all such acquisitions, when added to the fair
market value of all Persons merged into the Borrower or any of its
Restricted Subsidiaries pursuant to subsection 6.5(c), shall not
exceed $50,000,000 if the Total Debt Ratio is greater than or equal
to 4.75 to 1.0, and provided further that, prior to and after giving
effect to such purchase, there shall exist no Default or Event of
Default and the Borrower shall have delivered a certificate (with
such supporting detail and calculations as may be reasonably
requested by the Administrative Agent) from a Responsible Officer so
stating and provided further, that any such Person which shall
constitute a Subsidiary following such Investment shall be a
Restricted Subsidiary or, as the case may be, the assets so purchased
shall be owned by a Restricted Subsidiary;
(d) loans and advances to officers and employees of the
Borrower or its Restricted Subsidiaries for travel, entertainment and
relocation expenses and other purposes in the ordinary course of
business;
(e) Investments by the Borrower in its Restricted
Subsidiaries and Investments by such Restricted Subsidiaries in the
Borrower and in other Restricted Subsidiaries;
(f) Investments set forth on Schedule 6.8; and
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50
(g) (i) Investments in Unrestricted Subsidiaries as of the
Closing Date, (ii) Investments in Unrestricted Subsidiaries the
consideration for which shall consist solely of shares of the Capital
Stock of the Borrower and (iii) additional Investments in
Unrestricted Subsidiaries (A) during the period from and including
the Closing Date to and including September 29, 1999 in an aggregate
amount which, when added to the aggregate amount of any Restricted
Payments made during such period as permitted by subsection
6.7(b)(i), is not in excess of the First Unrestricted Basket and (B)
during the period from and including September 30, 1999 to and
including the Termination Date in an aggregate amount which, when
added to the aggregate amount of any Restricted Payments made during
such period as permitted by subsection 6.7(b)(ii), is not in excess
of the Second Unrestricted Basket.
6.9 Limitation on Optional Payments and Modifications of
Debt Instruments. (a) Make any optional payment or prepayment on or redemption
or purchase of the 6-3/4% Debentures (other than pursuant to subsection 6.2(d)
or 6.7), (b) amend, modify or change, or consent or agree to any amendment,
modification or change to any of the terms of the 6-3/4% Debentures, the
Infinity Agreements (in any manner that could have a material adverse effect on
the Lenders, provided that the Borrower shall inform the Lenders of any material
amendment, modification or change to an Infinity Agreement within 30 days after
the Borrower agrees to such amendment, modification or change) or the Class
Action Warrants (in any manner that is materially adverse to the Borrower), or
(c) amend the subordination provisions of the 6 3/4% Debentures.
6.10 Limitation on Capital Expenditures. Permit the
aggregate amount of Capital Expenditures in any fiscal year to exceed the sum of
(a) $5,000,000 plus (b) for each fiscal year commencing on and after January 1,
1997, the excess, if any, of the aggregate amount of Capital Expenditures
permitted in the immediately preceding fiscal year over the actual amount of
Capital Expenditures made by the Borrower and its Restricted Subsidiaries in
such immediately preceding fiscal year (provided that the amount of such excess
for such immediately preceding fiscal year shall not exceed $3,000,000).
6.11 Limitation on Sale or Discount of Receivables. The
Borrower shall not and shall not permit any of its Restricted Subsidiaries to,
discount or sell with recourse, or sell for less than the greater of the face
value or market value thereof, any of its notes receivable or accounts
receivable.
6.12 Limitation on Transactions with Affiliates. Except as
set forth on Schedule 6.12, enter into any transaction, including, without
limitation, any purchase, sale, lease or exchange of property or the rendering
of any service, with any Affiliate unless such transaction is (a) otherwise
permitted or not prohibited under this Agreement and (b) upon fair and
reasonable terms no less favorable to the Borrower or such Restricted
Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate.
6.13 Limitation on Changes in Fiscal Year. Permit the
fiscal year of the Borrower to end on a day other than December 31.
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51
6.14 Limitation on Negative Pledge Clauses. Enter into with
any Person any agreement, other than (a) this Agreement and (b) any industrial
revenue bonds, purchase money mortgages or Financing Leases permitted by this
Agreement (in which cases, any prohibition or limitation shall only be effective
against the assets financed thereby), which prohibits or limits the ability of
the Borrower or any of its Restricted Subsidiaries to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired unless the prohibitions or limitations contained
in such agreement would only restrict such Liens if they were not also made to
secure the obligations of the Borrower or a Restricted Subsidiary under such
agreement or a related agreement equally and ratably with the obligations which
such Liens were created to secure.
6.15 Limitation on Lines of Business. Enter into any
business, either directly or through any Restricted Subsidiary, except for the
commercial radio business (which shall be deemed to include, without limitation,
programming, production and distribution) and businesses related thereto.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be
continuing:
(a) The Borrower shall fail to pay any principal of any
Loan when due in accordance with the terms hereof; or the Borrower
shall fail to pay any interest on any Loan, or any other amount
payable hereunder, within five days after any such interest or other
amount becomes due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by
the Borrower or any other Loan Party herein or in any other Loan
Document or which is contained in any certificate furnished by it at
any time under or in connection with this Agreement or any such other
Loan Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) The Borrower shall default in the observance or
performance of any agreement contained in Section 6 (except that
defaults under subsections 6.3 and 6.10 shall not become Events of
Default unless they have been unremedied for a period of 15 days); or
(d) The Borrower or any other Loan Party shall default in
the observance or performance of any other agreement contained in
this Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days after the Borrower or
such Loan Party, as the case may be, obtains actual knowledge thereof
or after notice thereof to the Borrower by the Administrative Agent
or any Lender (through the Administrative Agent); or
(e) The Borrower or any of its Restricted Subsidiaries
shall (i) default in any payment of principal of or interest on any
Indebtedness (other than the Loans) or in the payment of any
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52
Guarantee Obligation, beyond the period of grace, if any, provided in
the instrument or agreement under which such Indebtedness or the
obligations that are the subject of such Guarantee Obligation was
created; or (ii) default in the observance or performance of any
other agreement or condition relating to any such Indebtedness or
Guarantee Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to become due prior to its stated
maturity or such Guarantee Obligation to become payable; provided,
however, that no Default or Event of Default shall exist under this
paragraph unless the aggregate amount of Indebtedness and/or
Guarantee Obligations in respect of which any default or other event
or condition referred to in this paragraph shall have occurred shall
be equal to at least $1,000,000; or
(f) (i) The Borrower or any of its Restricted Subsidiaries
shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of its
Restricted Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against
the Borrower or any of its Restricted Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there
shall be commenced against the Borrower or any of its Restricted
Subsidiaries any case, proceeding or other action seeking issuance of
a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) the Borrower or any of its
Restricted Subsidiaries shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in clause (i), (ii), or (iii) above; or (v) the
Borrower or any of its Restricted Subsidiaries shall generally not,
or shall be unable to, or shall admit in writing its inability to,
pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Single Employer Plan or any
Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event
<PAGE>
53
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or
to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Majority Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Borrower or any Commonly Controlled Entity shall, or
in the reasonable opinion of the Majority Lenders is likely to, incur
any liability in connection with a withdrawal from, or the Insolvency
or Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could
reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered
against the Borrower or any of its Restricted Subsidiaries involving
in the aggregate a liability (to the extent not paid or covered by
insurance) of $1,000,000 or more, and all such judgments or decrees
shall not have been vacated, discharged, stayed or bonded pending
appeal within 60 days from the entry thereof; or
(i) The Guarantee shall cease, for any reason, to be in
full force and effect with respect to any Guarantor or any Guarantor
shall so assert; or
(j) The Management Agreement shall be terminated or
otherwise cease to be in full force and effect, or the Borrower is or
becomes entitled to terminate the Management Agreement under Section
3.2(b)(ii) thereof; or
(k) (i) less than one-third of the members of the Board of
Directors of the Borrower shall be persons designated by INI, or (ii)
less than a majority of the members of the Board of Directors of the
Borrower shall be designated by INI or persons designated in the
manner provided in Section 1(a) of the Voting Agreement; or
(l) A Default of the type described in paragraph (e) above
shall have occurred and be continuing with respect to the
Indebtedness of an Unrestricted Subsidiary and as a result thereof
the Borrower or any of its Restricted Subsidiaries shall become
liable for such Indebtedness, in each case, whether by operation of
law, pursuant to contract or otherwise, or any holder or holders of
such Indebtedness shall so assert in writing in any proceeding before
a court or other adjudicatory body of competent jurisdiction and the
Majority Lenders shall determine, in the exercise of their reasonable
judgment, that the Borrower and/or any of its Restricted Subsidiaries
is reasonably likely to incur a liability as a result thereof which
would constitute a Material Adverse Effect; or
(m) The Borrower or any of its Restricted Subsidiaries
shall incur any liability (not paid or fully covered by insurance)
under any Environmental Law in an amount which constitutes a Material
Environmental Amount;
<PAGE>
54
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken: (i) with the consent of the Majority Lenders, the Administrative Agent
may, or upon the request of the Majority Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement (including, without limitation,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) to be due and payable
forthwith, whereupon the same shall immediately become due and payable.
Except as expressly provided above in this Section, to the
extent permitted by applicable law, presentment, demand, protest and all other
notices of any kind are hereby expressly waived.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates
and appoints the Administrative Agent as the administrative agent and BOA, BOB
and BOM as the Co-Agents of such Lender under this Agreement and the other Loan
Documents, and each such Lender irrevocably authorizes the Administrative Agent
and BOA, BOB and BOM as the Co-Agents to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent and the Co-Agents, as the case may be, by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any duties
or responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. The Co-Agents, in their capacity as such, shall not have
any duties or reponsibilities hereunder nor any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Co-Agents in their capacity as such.
8.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact or counsel selected by it with reasonable care.
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55
8.3 Exculpatory Provisions. Neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
8.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it in good faith to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Majority Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Majority Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
8.5 Notice of Default. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any Default or Event
of Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Majority Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
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8.6 Non-Reliance on Administrative Agent and Other Lenders;
Lender Representations. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to it
and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and made its
own decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrower which
may come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates. Each Lender
represents to each other party hereto that it is a bank, savings and loan
association or other similar savings institution, insurance company, investment
fund or company or other financial institution which makes or acquires
commercial loans in the ordinary course of its business, that it is
participating hereunder as a Lender for such commercial purposes, and that it
has the knowledge and experience to be and is capable of evaluating the merits
and risks of being a Lender hereunder. Each Lender acknowledges and agrees to
comply with the provision of subsection 9.6 applicable to the Lenders hereunder.
8.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Applicable Percentages in effect on the
date on which indemnification is sought, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of, the Commitments, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
Administrative Agent's gross negligence or willful misconduct. In the event any
such amounts are subsequently paid by or on behalf of the Borrower, the
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57
Administrative Agent shall promptly forward such amounts to the indemnifying
Lenders. The agreements in this subsection shall survive the payment of the
Loans and all other amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made by it, the Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
8.9 Successor Agents. The Administrative Agent and each of
the Co-Agents may resign as Administrative Agent and as Co-Agent, as the case
may be, upon 10 days' notice to the Lenders. If the Administrative Agent shall
resign as Administrative Agent under this Agreement and the other Loan
Documents, then the Majority Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent (provided that it shall
have been approved by the Borrower), shall succeed to the rights, powers and
duties of the Administrative Agent hereunder. Effective upon such appointment
and approval, the term "Administrative Agent" shall mean such successor agent,
and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. After any retiring Administrative
Agent's or Co-Agent's resignation as Administrative Agent or Co-Agent, as the
case may be, the provisions of this Section 8 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Administrative Agent
or Co-Agent, as the case may be, under this Agreement and the other Loan
Documents.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement nor any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Majority Lenders may, or, with the written consent of the
Majority Lenders, the Administrative Agent may, from time to time, (a) enter
into with the Borrower written amendments, supplements or modifications hereto
and to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Borrower hereunder or thereunder or (b) waive, on such
terms and conditions as the Majority Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Loan or of any installment thereof or of any reduction
of the Revolving Credit Commitments required pursuant to subsection 2.4(b) to be
made on any Mandatory Reduction Date, or reduce the rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof or
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58
increase the amount or extend theexpiration date of any Lender's Commitments, in
each case without the prior written consent of each Lender affected thereby, or
(ii) amend, modify or waive any provision of this subsection or reduce any of
the percentages specified in the definition of Majority Lenders, or consent to
the assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents, in each case without the
prior written consent of all the Lenders, (iii) amend, modify or waive any
provision of subsections 2.1 through 2.4, 2.21 and subsections 2.8 and 2.9 (to
the extent such subsections relate to the Revolving Credit Commitments) or
reduce any of the percentages specified in the definition of Majority Revolving
Credit Lenders without the prior written consent of the Majority Revolving
Credit Lenders, (iv) amend, modify or waive any provision of subsections 2.5
through 2.9 (to the extent such subsections relate to the Term Loans) or reduce
any of the percentages specified in the definition of Majority Term Lenders
without the written consent of the Majority Term Lenders, or (v) amend, modify
or waive any provision of Section 8 without the written consent of the then
Administrative Agent or the Co-Agents, as applicable. Any such waiver and any
such amendment, supplement or modification shall apply equally to each of the
Lenders and shall be binding upon the Borrower, the Lenders, the Administrative
Agent and all future holders of the Loans. In the case of any waiver, the
Borrower, the Lenders and the Administrative Agent shall be restored to their
former positions and rights hereunder and under the other Loan Documents, and
any Default or Event of Default waived shall be deemed to be cured and not
continuing; no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
specified under the caption "Address for Notices" below its name on the
signature pages hereof or to such other address as may be hereafter notified by
the respective parties hereto; provided that any notice, request or demand to or
upon the Administrative Agent or the Lenders pursuant to subsection 2.2, 2.4,
2.6, 2.8 or 2.10 shall not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
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9.5 Payment of Expenses and Taxes. The Borrower agrees (a)
to pay or reimburse the Administrative Agent for all its reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (b) to
pay or reimburse each Lender and the Administrative Agent for all its reasonable
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the reasonable fees and disbursements
of counsel to each Lender and of counsel to the Administrative Agent, (c) to
pay, indemnify, and hold each Lender and the Administrative Agent harmless from,
any and all recording and filing fees and any and all liabilities with respect
to, or resulting from any delay in paying, stamp, excise and other similar
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender and the Administrative Agent harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the actual or proposed use of the Loans, including, without
limitation, any of the foregoing relating to the violation of, noncompliance
with or liability under, any Environmental Law applicable to the operations of
the Borrower, any of its Subsidiaries or any of the Properties (all the
foregoing in this clause (d), collectively, the "indemnified liabilities"),
provided that the Borrower shall have no obligation hereunder to the
Administrative Agent or any Lender with respect to indemnified liabilities
arising from (i) the gross negligence or willful misconduct of the
Administrative Agent or any such Lender or (ii) legal proceedings commenced
against the Administrative Agent or any such Lender by any security holder or
creditor thereof arising out of and based upon rights afforded any such security
holder or creditor solely in its capacity as such. The agreements in this
subsection shall survive repayment of the Loans and all other amounts payable
hereunder.
9.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent and their respective successors
and assigns, except that the Borrower may not assign or transfer any of its
rights or obligations under this Agreement without the prior written consent of
each Lender.
(b) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any time
sell to one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Commitment of such Lender or any
other interest of such Lender hereunder and under the other Loan Documents. In
the event of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Loan for all purposes under this Agreement and the other Loan
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60
Documents, such Lender shall be solely responsible for any withholding taxes or
any filing or reporting requirements relating to such Participant and shall
indemnify and hold harmless the Borrower and the Administrative Agent and their
respective successors, permitted assigns, officers, directors, employees, agents
and representatives for and against any Non-Excluded Taxes (including interest
and penalties thereon and additions thereto), losses, costs and expenses
incurred in connection with such withholding taxes or filing or reporting
requirement, and the Borrower and the Administrative Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and the other Loan Documents. No
Lender shall be entitled to create in favor of any Participant, in the
participation agreement pursuant to which such Participant's participating
interest shall be created or otherwise, any right to vote on, consent to or
approve any matter relating to this Agreement or any other Loan Document except
for those specified in clauses (i) and (ii) of the proviso to the second
sentence of subsection 9.1. The Borrower agrees that if amounts outstanding
under this Agreement are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law, be deemed
to have the right of setoff in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement, provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in subsection 9.7(a) as fully as if it were a
Lender hereunder. All amounts payable by the Borrower to any Lender under
subsections 2.17, 2.18 and 2.19 in respect of the Loans held by it, and its
Commitments, shall be determined as if such Lender had not sold or agreed to
sell any participations in such Loans and Commitments, and as if such Lender
were funding and maintaining each of such Loans and Commitments in the same way
that it is funding and maintaining the portion of such Loan and Commitment in
which no participations have been sold.
(c) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any time
and from time to time assign to any Lender or any affiliate thereof or, with the
consent of the Administrative Agent and, if no Default or Event of Default shall
have occurred and be continuing, the consent of the Borrower (which in each case
shall not be unreasonably withheld), to an additional bank or financial
institution (an "Assignee") all or any part of its rights and obligations under
this Agreement and the other Loan Documents pursuant to an Assignment and
Acceptance, substantially in the form of Exhibit E, executed by such Assignee,
such assigning Lender (and, in the case of an Assignee that is not then a Lender
or an affiliate thereof, by the Borrower and the Administrative Agent) and
delivered to the Administrative Agent for its acceptance and recording in the
Register, provided that, in the case of any such assignment by a Lender which is
not assigning all of its Loans and Commitments, the sum of the aggregate
principal amount of the Loans and the aggregate amount of the Term Loan
Commitment and Available Revolving Credit Commitments being assigned is not less
than $5,000,000 (or such lesser amount as may be agreed to by the Borrower and
the Administrative Agent). Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder with a Commitment as set forth therein,
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and (y) the assigning Lender thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such assigning Lender shall cease to be a party hereto). Notwithstanding any
provision of this paragraph (c) and paragraph (e) of this subsection, the
consent of the Borrower shall not be required, and, unless requested by the
Assignee and/or the assigning Lender, new Notes shall not be required to be
executed and delivered by the Borrower, for any assignment which occurs at any
time when any of the events described in Section 7(f) shall have occurred and be
continuing.
(d) The Administrative Agent, on behalf of the Borrower,
shall maintain at the Administrative Agent's Address for Notices referred to in
subsection 9.2 a copy of each Assignment and Acceptance delivered to it and a
register (the "Register") for the recordation of the names and addresses of the
Lenders and the Commitments of, and principal amounts of the Loans owing to,
each Lender from time to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrower, the Administrative Agent and
the Lenders may (and, in the case of any Loan or other obligation hereunder not
evidenced by a Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan or other
obligation hereunder not evidenced by a Note shall be effective only upon
appropriate entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Assignee (and, in the case of an Assignee
that is not then a Lender or an affiliate thereof, by the Borrower and the
Administrative Agent) together with payment by the Assignee or the Lenders to
the Administrative Agent of a registration and processing fee of $5,000, the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to the provisions of subsection 9.15, any and all financial information
in such Lender's possession concerning the Borrower and its Affiliates which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Affiliates prior to becoming a party to this Agreement. No assignment or
participation made or purported to be made to any Transferee shall be effective
without the prior written consent of the Borrower if it would require the
Borrower to make any filing with any Governmental Authority or qualify any Loan
or Note under the laws of any jurisdiction, and the Borrower shall be entitled
to request and receive such information and assurances as it may reasonably
request from any Lender or any Transferee to determine whether any such filing
or participation is otherwise in accordance with the Requirements of Law.
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(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law; provided that any
transfer to an assignee upon the enforcement of any such security interest shall
be subject to the consent of the Borrower as provided herein.
9.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
Lender") shall at any time receive any payment of all or part of its Loans owing
to it, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 7(f), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans owing to it, or interest
thereon, such benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender's Loan owing to
it, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application.
9.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.
9.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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9.10 Integration. This Agreement and the other Loan
Documents represent the agreement of the Borrower, the Administrative Agent and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Borrower, the
Administrative Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 Submission To Jurisdiction; Waivers. To the extent
permitted by applicable law, the Borrower hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action
or proceeding relating to this Agreement and the other Loan Documents
to which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York, the courts of
the United States for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 9.2
or at such other address of which the Administrative Agent shall have
been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or
proceeding referred to in this subsection any punitive damages.
9.13 Acknowledgements. The Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan
Documents;
(b) neither the Administrative Agent nor any Lender has
any fiduciary relationship with or duty to the Borrower arising out
of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Administrative Agent and
Lenders, on one hand, and the Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and
creditor; and
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(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
9.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
9.15 Treatment of Certain Information; Confidentiality.
(a) The Borrower acknowledges that (i) services may be
offered or provided to it (in connection with this Agreement or otherwise) by
each Lender or by one or more subsidiaries or affiliates of such Lender and (ii)
information delivered to each Lender by the Borrower and its Subsidiaries may be
provided to each such subsidiary and affiliate, it being understood that any
such subsidiary or affiliate receiving such information shall be bound by the
provisions of clause (b) below as if it were a Lender hereunder.
(b) Each Lender and the Administrative Agent agrees (on
behalf of itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of this nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrower pursuant to this Agreement
which is identified by the Borrower as being confidential at the time the same
is delivered to the Lenders or the Administrative Agent and which is not already
in such Lender's possession on a nonconfidential basis and is not subsequently
delivered to such Lender on a nonconfidential basis by a Person who in so doing
has not violated a duty of confidentiality owing to the Borrower, provided that
nothing herein shall limit the disclosure of any such information (i) to the
extent required by statute, rule, regulation or judicial process, (ii) to
counsel for any of the Lenders or of the Administrative Agent, (iii) at their
request, to bank examiners or other regulators having analogous
responsibilities, (iv) to auditors or accountants, (v) to the Administrative
Agent or any other Lender (or to Chase Securities Inc.), (vi) in connection with
any litigation arising under or in connection with the transactions contemplated
by this Agreement or any of the other Loan Documents, (vii) to a subsidiary or
affiliate of such Lender as provided in clause (a) above or (viii) to any
assignee or participant (or prospective assignee or participant) so long as such
assignee or participant (or prospective assignee or participant) agrees to be
bound by the provisions of this subsection. In no event shall any Lender or the
Administrative Agent be obligated or required to return any materials furnished
by the Borrower.
9.16 Senior Indebtedness. Each of the parties hereto agrees
that all of the obligations of the Borrower hereunder and under any Notes
constitute "Senior Indebtedness" under and as defined in and for all purposes of
the 6-3/4% Debenture Indenture.
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9.17 Release of Collateral. On the Closing Date the
Administrative Agent shall release its security interest (without any notice to
or vote or consent of any Lender) in the Collateral under and as defined in the
Security Agreement, dated as of February 3, 1994, as amended, among the Obligors
(as defined therein) and The Chase Manhattan Bank, as Administrative Agent for
the lenders from time to time parties to the Existing Credit Agreement. On the
Closing Date and at any time and from time to time thereafter, the
administrative agent shall return to the Borrower all securities pledged under
such Security Agreement and upon the reasonable request of the Borrower and at
the Borrower's expense shall execute and deliver such instruments and documents
and take such actions as are reasonably necessary to release such security
interest in the Collateral from any public record.
<PAGE>
66
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
WESTWOOD ONE, INC.
By:
Title:
Address for Notices:
Westwood One, Inc.
c/o Infinity Broadcasting Corporation
600 Madison Avenue
New York, New York 10022
Attention: Mel Karmazin
Telecopier: (212) 888-2958
Telephone: (212) 750-6400
THE CHASE MANHATTAN BANK,
as Administrative Agent
and as a Lender
By:
Title:
Address for Notices:
The Chase Manhattan Bank
Agent Bank Services
140 East 45th Street, 29th Floor
New York, New York 10017
Attention: Sandra Miklave
Telecopier: (212) 622-0002
Telephone: (212) 622-0011
with a copy to:
The Chase Manhattan Bank
One Chase Manhattan Plaza
New York, New York 10081
Attention: James Kuster
Telecopier: (212) 552-4905
Telephone: (212) 552-3993
<PAGE>
THE FIRST NATIONAL BANK OF BOSTON,
as a Co-Agent and as a Lender
By:_______________________________
Title:
Address for Notices:
The First National Bank of Boston
100 Federal Street
MS: 01-08-08
Boston, MA 02110
Attention: Reginald T. Dawson
Telecopier: (617) 434-3401
Telephone: (617) 434-0788
<PAGE>
BANK OF AMERICA ILLINOIS,
as a Co-Agent and as a Lender
By:_______________________________
Title:
Address for Notices:
Bank of America New York
335 Madison Avenue, 5th Floor
New York, NY 10017
Attention: Russell Solomon
Telecopier: (212) 503-7173
Telephone: (212) 503-7648
<PAGE>
BANK OF MONTREAL,
as a Co-Agent and as a Lender
By:_______________________________
Title:
Address for Notices:
Bank of Montreal
430 Park Avenue
New York, NY 10022
Attention: Andrew Moore
Telecopier: (212) 605-1621
Telephone: (212) 605-1616
<PAGE>
THE BANK OF NEW YORK
By:_______________________________
Title:
Address for Notices:
The Bank of New York
One Wall Street
16th Floor
New York, NY 10286
Attention: Peter Hanford
Telecopier: (212) 635-8593
Telephone: (212) 635-8691
<PAGE>
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By:_______________________________
Title:
Address for Notices:
The Long-Term Credit Bank of
Japan Ltd., Los Angeles Agency
350 South Grand Avenue
Suite 3000
Los Angeles, CA 90071
Attention: Takaomi Tomioka
Telecopier: (213) 622-6908
Telephone: (213) 689-6355
<PAGE>
KEYBANK NATIONAL ASSOCIATION
By:_______________________________
Title:
Address for Notices:
127 Public Square
Mail Code: OH0127-0602
Cleveland, OH 44114
Attention: Timothy Willard
Telecopier: (216) 689-4666
Telephone: (216) 689-4458
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> SEP-30-1996
<CASH> 4,232
<SECURITIES> 0
<RECEIVABLES> 40,244<F1>
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 47,856
<PP&E> 15,764<F2>
<DEPRECIATION> 0
<TOTAL-ASSETS> 272,918
<CURRENT-LIABILITIES> 43,324
<BONDS> 130,443
0
0
<COMMON> 322<F3>
<OTHER-SE> 92,711<F4>
<TOTAL-LIABILITY-AND-EQUITY> 272,918
<SALES> 0
<TOTAL-REVENUES> 126,801<F5>
<CGS> 0
<TOTAL-COSTS> 93,798<F6>
<OTHER-EXPENSES> 13,169<F7>
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 6,494
<INCOME-PRETAX> 13,547
<INCOME-TAX> 730
<INCOME-CONTINUING> 12,817
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 12,817
<EPS-PRIMARY> .38
<EPS-DILUTED> .38
<FN>
<F1> REFLECTED NET OF THE ALLOWANCE FOR DOUBTFUL ACCOUNTS.
<F2> REFLECTED NET OF ACCUMULATED DEPRECIATION AND AMORTIZATION.
<F3> COMPRISED OF COMMON STOCK AND CLASS B STOCK.
<F4> REFLECTED NET OF TREASURY STOCK.
<F5> COMPRISED OF NET REVENUES.
<F6> COMPRISED OF OPERATING COSTS AND EXPENSES EXCLUDING
DEPRECIATION AND AMORTIZATION.
<F7> COMPRISED OF: (A) DEPRECIATION AND AMORTIZATION, AND (B)
CORPORATE GENERAL AND ADMINISTRATIVE EXPENSES.
</FN>
</TABLE>
