<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of earliest event
reported: June 17, 1994
INFINITY BROADCASTING CORPORATION
_________________________________
(Exact Name of registrant as specified in its charter)
Delaware 0-14702 13-2766282
__________________________________________________________________
(State of (Commission File Number) (IRS Employer
Incorporation) Identification No.)
600 Madison Avenue, New York, New York 10022
__________________________________________________________________
(Address of principal executive offices) (Zip Code)
(212)750-6400
___________________________
(Registrant's telephone number)
<PAGE>
Item 2. Acquisition or Disposition of Assets.
_____________________________________
On June 17, 1994 Infinity Broadcasting Corporation (the
"Company") and its wholly-owned subsidiary, Infinity Broadcasting
Corporation of Maryland, completed the acquisition of two radio stations
serving Washington, D.C. for a total purchase price of $60,500,000. In
the transaction, the Company's subsidiary acquired the assets of
WPGC-AM and WPGC-FM (Morningside, Maryland), from Cook Inlet Radio
Partners, L.P. and Cook Inlet Radio License Partnership, L.P.
The Purchase price of the acquisition was funded by bank
borrowings under the Company's Amended and Restated Credit Agreement,
dated as of June 7, 1994 (the "Credit Agreement"), with a syndicated
group of bank lenders. The Credit Agreement provides for aggregate
borrowings of up to $470 million, including an acquisition facility of
$265 million. Upon completion of the Cook Inlet acquisition,
approximately $89 million remained available to finance additional
acquisitions. The Company used approximately $23 million of that
remaining amount to complete the purchase of Detroit radio station
WXYT(AM) on June 27, 1994.
As required by federal law and the rules of the Federal
Communications Commission (the "FCC"), the FCC consented to the
Company's acquisition of the two Washington, D.C. stations, and such
consent became final on June 30, 1994. Under current FCC rules, the
Company is permitted to own multiple radio stations serving Washington,
D.C. In addition to the Washington, D.C. stations acquired from Cook
Inlet, the Company owns WJFK-AM/FM which serves Washington, D.C.
Item 7. Financial Statements and Exhibits.
_________________________________
(a) Financial Statements of Business Acquired.
(b) Pro Forma Financial Information.
As of the date on which this Report on Form 8-K is required to
be filed, it is impracticable to provide the financial statements and
pro forma financial information required by this Item 7. Accordingly,
as permitted by subsections (a) (4) and (b) (2) of this Item 7, the
Company will file the required statements and information as soon as
such material is available, and in no event later that 60 days after the
date of this Report on Form 8-k. Such filing shall be made under cover
of Form 8.
(c) Exhibits.
<PAGE>
Exhibit
Number Description of Exhibit
_______ ______________________
2(a) Asset Purchase Agreement, dated as of October 4, 1993, by and
between Cook Inlet Radio Partners, L.P. and Cook Inlet Radio
License Partnership, L.P. and Infinity Broadcasting
Corporation of Maryland and the Company. (This exhibit can be
found as Exhibit 2(f) to the Company's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1993 (File No.
0-14702) and is incorporated herein by reference.)
2(b) Amendment to Asset Purchase Agreements, dated as of June 17,
1994, by and among Cook Inlet Radio Partners, L.P., Cook Inlet
Radio License Partnership, L.P., Infinity Broadcasting
Corporation of Maryland, Infinity Broadcasting Corporation of
Chicago, Infinity Broadcasting Corporation of Atlanta,
Infinity Broadcasting Corporation of Boston and the Company.
2(c) Asset Purchase Agreement, dated as of March 8, 1994, by and
between Fritz Broadcasting, Inc., Infinity Broadcasting
Corporation of Detroit and the Company. (This exhibit can be
found as Exhibit 2(h) to the Company's Annual Report on Form
10-K for the year ended December 31, 1993 (File No. 0-14702)
and is incorporated herein by reference.)
4(a) Amended and Restated Credit Agreement, dated as of June 7,
1994, between the Company, each of the lenders identified
under the caption "Banks" on the signature pages thereof (the
"Banks"), The Chase Manhattan Bank (National Association), as
administrative agent for the Banks, Bank of Montreal, The Bank
of New York and Chemical Bank, as co-agents for the Banks, and
Chemical Bank, as collateral agent for the Banks, including a
list of omitted schedules and an undertaking by the Company to
furnish supplementally a copy of any such omitted schedule to
the Securities and Exchange Commission upon request.
4(b) Security Agreement, dated as of June 7, 1994, by and among the
Company, each of the subsidiaries of the Company identified
under the caption "Subsidiaries" on the signature pages
thereof, and Chemical bank, as collateral agent for the
lenders or other financial institutions or entities party, as
lenders, to the Credit Agreement, including a list of omitted
schedules and an undertaking by the Company to furnish
supplementally a copy of any such omitted schedule to the
Securities and Exchange Commission upon request.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
INFINITY BROADCASTING CORPORATION
Dated: July 5, 1994 By
__________________________
Farid Suleman
Vice President-Finance and
Chief Financial Officer
<PAGE>
AMENDMENT TO
ASSET PURCHASE AGREEMENTS
The ASSET PURCHASE AGREEMENT made as of the 15th
day of August, 1992, by and between COOK INLET RADIO PART-
NERS, L.P., a Delaware limited partnership, and COOK INLET
RADIO LICENSE PARTNERS, L.P., a Delaware limited partnership
(together, "1992 Sellers") and INFINITY BROADCASTING CORPO-
RATION OF CHICAGO, a Delaware corporation ("Infinity
Chicago"), INFINITY BROADCASTING CORPORATION OF ATLANTA, a
Delaware corporation ("Infinity Atlanta"), INFINITY BROAD-
CASTING CORPORATION OF BOSTON, a Delaware corporation
("Infinity Boston") and INFINITY BROADCASTING CORPORATION, a
Delaware corporation ("Infinity") (together, "1992 Buyers")
(the "1992 Agreement"), and the ASSET PURCHASE AGREEMENT
made as of the 4th day of October, 1993, by and between COOK
INLET RADIO PARTNERS, L.P., a Delaware limited partnership,
and COOK INLET RADIO LICENSE PARTNERSHIP, L.P., a Delaware
limited partnership (together, "1993 Sellers") and INFINITY
BROADCASTING CORPORATION OF MARYLAND, a Delaware corporation
("Infinity Maryland") and INFINITY BROADCASTING CORPORATION,
a Delaware corporation ("Infinity") (together, "1993
Buyers") (the "1993 Agreement"), are hereby amended as of
this 17th day of June, 1994, as follows:
1. Delete the Final Order conditions precedent
to 1993 Buyers' and 1993 Sellers' obligations to close under
Sections 11.2 and 12.2 of the 1993 Agreement in order to
<PAGE>
permit Closing of the 1993 Agreement to occur on June 14,
1994.
2. The Purchase Price in Section 2.4 of the 1993
Agreement is changed to Sixty Million Five Hundred Thousand
Dollars ($60,500,000).
3. Except for those obligations and recourses
that would have applied if the Closing under the 1993 Agree-
ment had occurred on the basis of a Final Order, after
Closing under the 1993 Agreement 1993 Sellers (or their
partners) shall have no obligation to 1993 Buyers, and 1993
Buyers shall have no recourse against 1993 Sellers (or their
partners), under the 1993 Agreement if the FCC Consent
granted on May 20, 1994, does not become a Final Order or
if, after Closing, the FCC Consent is vacated, reversed,
stayed, set aside, annulled or suspended ("FCC Reversal").
By way of illustration but not of limitation, in the event
of any FCC Reversal after Closing under the 1993 Agreement
1993 Sellers (or their partners) shall have no obligation to
1993 Buyers to return the Purchase Price in whole or in
part, or to accept reassignment in whole or in part of
Station Assets assigned to 1993 Buyers at Closing, including
the Station Licenses, pursuant to Section 2.2 of the 1993
Agreement; or to reassume in whole or in part any liabili-
ties, obligations or commitments assumed by 1993 Buyers at
Closing pursuant to Sections 3.1 and 5.2 of the 1993
Agreement.
2
<PAGE>
4. 1992 Buyers hereby withdraw, and agree not to
reassert, all claims that they have asserted to the date of
this Amendment against 1992 Sellers under Articles 5 and 17
or other provisions of the 1992 Agreement, except for the
claim for indemnification made by 1992 Buyers with respect
to the claim by Aileen Magda against Station WZGC.
5. The eighteen (18) month survival period
specified in Article 19 of the 1992 Agreement is amended so
as to expire on the date of this Amendment. The other sur-
vival periods specified therein shall remain unchanged.
6. 1993 Buyers hereby release 1993 Sellers from
any further obligations or responsibilities to 1993 Buyers,
including but not limited to indemnification of 1993 Buyers
or the defense or payment of third party claims with respect
to (a) alleged pre- or post-Closing non-compliance of the
Owned Real Property or the Demised Premises or 1993 Sellers
with Environmental Laws, except to the extent 1993 Sellers
have failed to disclose to 1993 Buyers any such noncom-
pliance of which 1993 Sellers have knowledge as of the date
hereof, or (b) any Further Environmental Studies or any
environmental remediation, monitoring or reporting within
the scope of Section 9.9 of the 1993 Agreement after the
Closing. 1993 Buyers hereby agree to indemnify and hold the
1993 Sellers harmless against and with respect to, and shall
reimburse 1993 Sellers for, any and all third-party actions,
suits, proceedings, claims, demands, assessments, judgments,
costs and expenses, including reasonable legal fees and
3
<PAGE>
expenses, incident to any of the foregoing environmental
matters, during the period of ownership of the Owned Real
Property or occupancy of the Demised Premises by 1993 Buyers
or any of their affiliates; provided, however, that 1993
Buyer shall have no obligation to indemnify 1993 Sellers
arising from Sellers' own acts or omissions with respect to
the Owned Real Property or the Demised Premises or Environ-
mental Laws during the period of Sellers' ownership of the
Owned Real Property or its occupancy of the Demised
Premises.
7. 1992 Buyers hereby agree to assume and to
perform any and all obligations of 1992 Sellers under that
certain agreement dated March 20, 1985, by and between First
Media Corporation and Advertising Agency Associates, Inc.,
currently the subject of litigation in The Allan R. Hackel
___________________
Org. Inc. v. Cook Inlet Communication, Inc., et al., Common-
_________ ______________________________________
wealth of Massachusetts, Middlesex, SS. Superior Court,
Civil Action No. MICV-93-6381 (Nov. 5, 1993) ("the Case"),
to assume responsibility for the defense of the Case after
Closing, and to indemnify and hold the 1992 Sellers harmless
against and with respect to any judgments, costs and ex-
penses, including reasonable legal fees and expenses,
incident to the Case arising after the Closing.
8. Capitalized terms not defined in this Amend-
ment shall have the same meaning as in the 1992 Agreement or
the 1993 Agreement, as appropriate. Except as expressly
modified and amended by the provisions of this Amendment,
4
<PAGE>
all terms, covenants and conditions of the 1992 Agreement
and the 1993 Agreement shall remain in full force and effect
in accordance with their terms and Section 20.8 of the 1993
Agreement shall govern this Amendment. This Amendment may
be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall con-
stitute one and the same Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written
above.
COOK INLET RADIO PARTNERS, L.P.
By: Cook Inlet Communications, Inc.,
its Controlling General Partner
By: /s/ Edwin B. Hill, Jr.
____________________________________
Name: Edwin B. Hill, Jr.
Title: Vice President
COOK INLET RADIO LICENSE
PARTNERSHIP, L.P.
By: Cook Inlet Radio Partners, L.P.,
its Controlling General Partner
By: Cook Inlet Communications, Inc.,
its Controlling General Partner
By: /s/ Edwin B. Hill, Jr.
____________________________________
Name: Edwin B. Hill, Jr.
Title: Vice President
5
<PAGE>
INFINITY BROADCASTING CORPORATION
By: /s/ Farid Suleman
____________________________________
Title: Vice President - Finance, Chief
Financial Officer and Assistant
Secretary
INFINITY BROADCASTING CORPORATION OF
MARYLAND
By: /s/ Farid Suleman
____________________________________
Title: Vice President - Finance and
Assistant Secretary
INFINITY BROADCASTING CORPORATION OF
CHICAGO
By: /s/ Farid Suleman
____________________________________
Title: Vice President - Finance and
Assistant Secretary
INFINITY BROADCASTING CORPORATION OF
ATLANTA
By: /s/ Farid Suleman
____________________________________
Title: Vice President - Finance and
Assistant Secretary
INFINITY BROADCASTING CORPORATION OF
BOSTON
By: /s/ Farid Suleman
____________________________________
Title: Vice President - Finance and
Assistant Secretary
6
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT dated as of
June 7, 1994 between: INFINITY BROADCASTING CORPORATION, a
corporation duly organized and validly existing under the laws of
the State of Delaware (together with its successors and assigns,
the "Company"); each of the lenders identified under the caption
_______
"BANKS" on the signature pages hereof or which, pursuant to
Section 11.06(a) hereof, shall become a "Bank" hereunder
(individually, a "Bank" and, collectively, the "Banks"); THE
____ _____
CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national banking
association, as administrative agent for the Banks (in such
capacity, together with its successors in such capacity, the
"Administrative Agent"); BANK OF MONTREAL, a bank organized under
____________________
the laws of Canada, THE BANK OF NEW YORK, a New York banking
corporation, and CHEMICAL BANK, a New York banking corporation,
as co-agents for the Banks (in such capacity, together with their
respective successors in such capacity, the "Co-Agents"); and
_________
CHEMICAL BANK, a New York banking corporation, as collateral
agent for the Banks (in such capacity, together with its
successors in such capacity, the "Collateral Agent" and, together
________________
with the Administrative Agent and the Co-Agents, the "Agents").
______
The Company, certain subsidiaries of the Company, the
Banks and the Agents are party to a Credit Agreement dated as of
September 22, 1992 as amended by Amendment No. 1 thereto dated as
of December 1, 1992, Amendment No. 2 thereto dated as of May 31,
1993, Amendment No. 3 thereto dated as of August 31, 1993 and
Amendment No. 4 thereto dated as of May 18, 1994 (as modified and
supplemented and as in effect immediately prior to the Effective
Date referred to below, the "Existing Credit Agreement")
_________________________
providing for loans (the "Existing Loans") to be made by the
______________
Banks to the Company and to certain of its subsidiaries in an
aggregate principal amount not exceeding $320,000,000.
The Company wishes to (i) modify the amortization of
the Existing Loans, (ii) increase the amount of the Acquisition
Loan Commitments under and as defined in the Existing Credit
Agreement to $265,000,000 and (iii) provide for Acquisition Loans
under and as defined in the Existing Credit Agreement to be made
to certain of its subsidiaries as well as to it. Accordingly,
the Company has requested and the Banks and the Agents agree,
effective as of the Effective Date (as such term is defined
below), that the Existing Credit Agreement shall be amended and
restated to read as set forth in this Agreement, all on the terms
and conditions hereinafter set forth so that, as amended and
restated, the Existing Credit Agreement reads in its entirety as
provided in this Amended and Restated Credit Agreement (provided
________
that, if the Effective Date does not occur on or prior to
June 30, 1994, this Agreement shall terminate and be of no
1
<PAGE>
Credit Agreement
________________
further force and effect and the Existing Credit Agreement shall
not be so amended and restated, provided further that the
________________
obligations of the Company referred to in Section 11.03 hereof
shall survive the termination of this Agreement whether or not
the Effective Date in fact occurs).
Section 1. Definitions; Accounting Matters and
___________________________________
Interpretation of Provisions.
____________________________
1.1. Certain Defined Terms. As used herein, the
_____________________
following terms shall have the following meanings (all terms
defined in this Section 1.01 or in other provisions of this
Agreement in the singular to have the same meanings when used in
the plural and vice versa):
____ _____
"Acquisition" shall mean any transaction, or any series
___________
of related transactions, by which the Company and/or any of its
Restricted Subsidiaries acquires, directly or indirectly, whether
through purchase or lease of assets, merger or otherwise (a) any
going business or all or substantially all of the assets of (i)
any firm or corporation, (ii) any partnership or Joint Venture or
(iii) any division of any firm, corporation, partnership or Joint
Venture, (b) (i) the right to use or manage or otherwise exploit
any going business or all or substantially all of the assets of
any firm, corporation, partnership or Joint Venture or any
division of any thereof and (ii) the right to retain, directly or
indirectly, all or a substantial part of the revenues or net
profits derived from such use or management or other
exploitation, (c) control of at least a majority (in number of
votes) of the securities of a corporation which have ordinary
voting power for the election of directors or (d) control of a
majority ownership interest in any partnership or Joint Venture.
The terms "Acquire" and "Acquired" used as a verb shall have a
_______ ________
correlative meaning.
"Acquisition Agreement" shall mean, with respect to any
_____________________
Acquisition, all agreements, instruments and other documents
pursuant to which such Acquisition or any part thereof is to be
effected (including, without limitation, all schedules and
exhibits thereto and all other material agreements, instruments
or other documents relating thereto).
"Acquisition Loan Commitment" shall mean, as to each
___________________________
Revolving Credit Bank, the obligation of such Bank to make
Acquisition Loans in an aggregate principal amount at any one
time outstanding up to but not exceeding (a) in the case of a
2
<PAGE>
Credit Agreement
________________
Revolving Credit Bank that is a party to this Agreement on the
date hereof, the amount set forth opposite the name of such Bank
on Schedule I hereto under the heading "Acquisition Loan
Commitments"; and (b) in the case of any other Revolving Credit
Bank, the aggregate amount of the Acquisition Loan Commitments of
other Revolving Credit Banks acquired by it pursuant to Section
11.06(a) hereof (in the case of each of the foregoing clauses (a)
and (b), as the same may be reduced from time to time pursuant to
Section 2.03 hereof or increased or reduced from time to time
pursuant to said Section 11.06(a)).
"Acquisition Loans" shall mean Infinity Acquisition
_________________
Loans and Subsidiary Acquisition Loans.
"Affiliate" shall mean any Person which directly or
_________
indirectly controls, or is under common control with, or is
controlled by, the Company and, if such Person is an individual,
any member of the immediate family (including parents, spouse and
children) of such individual and any trust whose principal
beneficiary is such individual or one or more members of such
immediate family and any Person who is controlled by any such
member or trust. As used in this definition, "control"
_______
(including, with its correlative meanings, "controlled by" and
_____________
"under common control with") shall mean possession, directly or
_________________________
indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities
or partnership or other ownership interests, by contract or
otherwise), provided that, in any event, any Person which owns
________
directly or indirectly 5% or more of the securities having
ordinary voting power for the election of directors or other
governing body of a corporation or 5% or more of the partnership
or other ownership interests of any other Person (other than as a
limited partner of such other Person) will be deemed to control
such corporation or other Person. Notwithstanding the foregoing,
no individual shall be deemed to be an Affiliate solely by reason
of his or her being a director, officer or employee of the
Company or any of its Restricted Subsidiaries and the Company and
its Restricted Subsidiaries shall not be deemed to be Affiliates
of each other.
"After Tax ACOCF" shall mean, for any period, the
_______________
amount by which (a) Annualized Consolidated Operating Cash Flow
for such period exceeds (b) all federal, state and local income
_______
taxes paid or payable by the Company (excluding any such taxes
for which the Company has been or is entitled to be reimbursed or
in respect of which the Company has received or is entitled to
3
<PAGE>
Credit Agreement
________________
receive a credit pursuant to the terms of any Tax Allocation
Agreement) and its Restricted Subsidiaries during such period.
"Agreement" shall mean this Amended and Restated Credit
_________
Agreement, as the same shall be modified and supplemented and in
effect from time to time, and the words "hereof", "herein" and
"hereunder" and words of similar import when used in this
Agreement shall refer to this Amended and Restated Credit
Agreement as a whole and not to any particular provision of this
Agreement unless otherwise specified. In addition, the term
"date hereof" and terms of similar import when used in this
Agreement shall refer to the date of this Amended and Restated
Credit Agreement (and not the date of the Existing Credit
Agreement).
"Annualized Consolidated Corporate Overhead" shall
__________________________________________
mean, for any period, corporate general and administrative
expenses of the Company and its Restricted Subsidiaries for such
period as shown on the consolidated financial statements of the
Company and its Restricted Subsidiaries for such period delivered
to the Administrative Agent; 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 Company incurred on behalf of, or
otherwise attributable to, Unrestricted Subsidiaries or in
connection with management and other services and activities
performed by the Company for Unrestricted Subsidiaries.
"Annualized Consolidated Operating Cash Flow" shall
___________________________________________
mean, for any period, the aggregate amount, for the Company and
its Restricted Subsidiaries, of (a) the sum (determined on a
consolidated basis without duplication in accordance with GAAP)
of (i) net revenues of the Company and its Restricted
Subsidiaries for such period (calculated before taxes and
excluding (I) any net gain or loss arising from the sale of
capital assets during such period; (II) any gain arising from any
write-up of assets during such period; (III) net earnings for
such period of any Person in which the Company or any of its
Restricted Subsidiaries has an ownership interest unless such net
earnings shall have actually been received by the Company or such
Restricted Subsidiary in the form of cash distributions (other
than cash distributions received by the Company from an
Unrestricted Subsidiary); (IV) any portion of the net earnings of
any Restricted Subsidiary of the Company or any of its Restricted
Subsidiaries for such period which for any reason is unavailable
for payment of dividends to the Company or any other such
Restricted Subsidiary; (V) any gain realized during such period
4
<PAGE>
Credit Agreement
________________
arising from the acquisition of any securities of the Company or
any of its Restricted Subsidiaries; (VI) any "extraordinary
earnings" or "extraordinary losses" for such period as such terms
are interpreted under GAAP; and (VII) any interest income of the
Company and its Restricted Subsidiaries realized during such
period) minus (ii) operating expenses of the Company and its
_____
Restricted Subsidiaries for such period (excluding depreciation,
amortization, net 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 Company has not been or is not entitled to be
reimbursed, or in respect of which the Company 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 Company and
its Restricted Subsidiaries) minus (b) Annualized Consolidated
_____
Corporate Overhead for such period; provided that, if the Company
________
or any of its Restricted Subsidiaries shall have Acquired or
Disposed of one or more Stations or one or more commercial radio
or other businesses related to communications or programming (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 Station or business (or part
thereof) had been owned by the Company or such Restricted
Subsidiary for the whole of such period or (in the case of a
Disposition) such Station or business (or part thereof) had been
Disposed of prior to the first day of such period and provided,
________
further that, for purposes of, and solely as used in, the
_______
definition of "Excess Cash Flow", if the Company or any of its
Restricted Subsidiaries shall have Acquired or Disposed of one or
more Stations or one or more commercial radio or other businesses
related to communications or programming (or any part thereof)
during such period, Annualized Consolidated Operating Cash Flow
for such period shall be computed giving effect to such
Acquisition or Disposition as of the date such Acquisition or
Disposition in fact occurred.
"Applicable Lending Office" shall mean, for each Bank
_________________________
and for each type of Loan, the "Lending Office" of such Bank (or
of an affiliate of such Bank) designated for such type of Loan on
the signature pages hereof or such other office of such Bank (or
of an affiliate of such Bank) as such Bank may from time to time
specify to the Administrative Agent and the Company as the office
by which its Loans of such type are to be made and maintained.
"Applicable Margin" shall mean:
_________________
5
<PAGE>
Credit Agreement
________________
(a) with respect to Base Rate Loans, 0.75% at all
times when the Total Debt Ratio is greater than 5.50 to 1,
0.50% at all times when the Total Debt Ratio is greater than
5.00 to 1 but less than or equal to 5.50 to 1, 0.25% at all
times when the Total Debt Ratio is greater than 4.00 to 1
but less than or equal to 5.00 to 1 and 0.0% at all times
when the Total Debt Ratio is less than or equal to 4.00
to 1; and
(b) with respect to Eurodollar Loans, 1.75% at all
times when the Total Debt Ratio is greater than 5.50 to 1,
1.50% at all times when the Total Debt Ratio is greater than
5.00 to 1 but less than or equal to 5.50 to 1, 1.25% at all
times when the Total Debt Ratio is greater than 4.00 to 1
but less than or equal to 5.00 to 1 and 1.00% at all times
when the Total Debt Ratio is less than or equal to 4.00
to 1.
For purposes of this definition, the Total Debt Ratio shall be
determined for any day during the period commencing on the
Effective Date and ending on the second Business Day after the
first date the Company delivers consolidated financial statements
of the Company pursuant to either Section 8.01(c) or 8.01(d)
hereof on the basis of the most recent consolidated financial
statements of the Company referred to in Section 7.02 hereof and
for any day thereafter on the basis of the then most recent
consolidated financial statements of the Company delivered
pursuant to said Section 8.01(c) or 8.01(d) and any change in the
Applicable Margin as a result of a change in the Total Debt Ratio
shall be effective as of the second Business Day following the
date the relevant financial statements of the Company are
delivered pursuant to said Section 8.01(c) or 8.01(d) to the
Administrative Agent, provided that in the event that the Company
________
shall fail to deliver any consolidated financial statements by
the respective date required pursuant to said Sections 8.01(c)
and 8.01(d), the Total Debt Ratio then in effect shall continue
to be in effect until the second Business Day following the date
such financial statements are in fact delivered.
"Assignment Agreement" shall mean an Assignment and
____________________
Assumption Agreement substantially in the form of Exhibit J
hereto between the Company and a Subsidiary Borrower of
Acquisition Loans (including, without limitation, Infinity of
Boston and Infinity of California) as contemplated by Section
2.01(d)(ii) hereof, as the same shall be modified and
supplemented and in effect from time to time.
6
<PAGE>
Credit Agreement
________________
"Bankruptcy Code" shall mean the Federal Bankruptcy
_______________
Code of 1978, as amended from time to time.
"Base Rate" shall mean, for any day, the higher of
_________
(a) the Federal Funds Rate for such day plus 1/4 of 1% and
____
(b) the Prime Rate for such day. Each change in any interest
rate provided for herein based upon the Base Rate resulting from
a change in the Base Rate shall take effect at the time of such
change in the Base Rate.
"Base Rate Loans" shall mean Loans which bear interest
_______________
at rates based upon the Base Rate.
"Basic Documents" shall mean, collectively, this
_______________
Agreement, the Subsidiary Loan Agreements, the Notes, the
Security Documents and the Assignment Agreements.
"Business Day" shall mean any day on which commercial
____________
banks are not authorized or required to close in New York City
and, if such day relates to a borrowing of, a payment or
prepayment of principal of or interest on, or a Continuance of or
a Conversion of or into, or an Interest Period for, a Eurodollar
Loan or a notice by the Company with respect to any such
borrowing, payment, prepayment, Continuance, Conversion or
Interest Period, which is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"Capital Expenditures" shall mean expenditures (whether
____________________
paid in cash or accrued as a liability) for fixed or other
capital assets or improvements, replacements, substitutions or
additions thereto, including, without limitation, the direct or
indirect acquisition of such assets by way of increased product
or service charges, offset items or otherwise.
"Capital Lease Obligations" shall mean, for any Person,
_________________________
the obligations of such Person to pay rent or other amounts under
a lease of (or other agreement conveying the right to use) real
and/or personal Property which obligations are required to be
classified and accounted for as a capital lease on a balance
sheet of such Person under GAAP and, for purposes of this
Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP.
"Chase" shall mean The Chase Manhattan Bank (National
_____
Association).
7
<PAGE>
Credit Agreement
________________
"Class A Shares" shall mean the shares of Class A
______________
common stock, par value $0.002 per share, of the Company
(including any such shares underlying the New Infinity Warrants
owned by the Management Investors, the Karmazin Warrants and the
Employee Options).
"Class B Shares" shall mean the shares of Class B
______________
common stock, par value $0.002 per share, of the Company
(including any such shares underlying the Karmazin Options).
"Class C Shares" shall mean the shares of Class C
______________
common stock, par value $0.002 per share, of the Company
(including any such shares underlying the Infinity Warrants and
the New Infinity Warrants owned by the SLH Investors).
"Code" shall mean the Internal Revenue Code of 1986, as
____
amended from time to time.
"Collateral" shall mean the "Collateral" under and as
__________
defined in the Security Agreement.
"Commitment Termination Date" shall mean the Quarterly
___________________________
Date falling on or nearest to September 30, 1995.
"Commitments" shall mean, collectively, the Working
___________
Capital Loan Commitments and the Acquisition Loan Commitments.
"Communications Franchise" shall mean a franchise,
________________________
license, right, permit, authorization, consent or other
instrument granted by the government of the United States of
America, a state, city, town, county or other municipality or
political subdivision, whether pursuant to or in any franchise,
ordinance, license or other agreement or otherwise, pursuant to
which a Person has, or is given, the right to operate a system
(or any part thereof) transmitting radio or other communications
signals, including, without limitation, any system transmitting
from a transmitter licensed by the FCC.
"Continue", "Continuation" and "Continued" shall refer
________ ____________ _________
to the continuation pursuant to Section 2.08 hereof of a
Eurodollar Loan from one Interest Period for such Loan to the
next Interest Period for such Loan.
"Convert", "Conversion" and "Converted" shall refer to
_______ __________ _________
a conversion pursuant to Section 2.08 hereof of Base Rate Loans
into Eurodollar Loans or of Eurodollar Loans into Base Rate
Loans, which may be accompanied by the transfer by a Bank (at its
8
<PAGE>
Credit Agreement
________________
sole discretion) of a Loan from one Applicable Lending Office to
another.
"Default" shall mean an Event of Default or an event
_______
which with notice or lapse of time or both would become an Event
of Default.
"Deferred Share Plan" shall mean the Company's Deferred
___________________
Share Plan as amended and restated as of August 16, 1993, and as
amended, effective as of November 19, 1993, as the same shall be
modified and supplemented and in effect from time to time.
"Disposition" shall mean (a) any sale, assignment,
___________
transfer or other disposition of any Property (whether now owned
or hereafter acquired) by the Company or any of its Restricted
Subsidiaries (in one transaction or as the most recent
transaction in a series of related transactions) to any other
Person excluding (i) the granting of Liens under and other
dispositions by the Company or such Restricted Subsidiary
pursuant to the Security Agreement and (ii) any sale, assignment,
transfer or other disposition of (x) obsolete or worn-out
equipment no longer used or useful in the business of the Company
or such Restricted Subsidiary; (y) capital stock of Unrestricted
Subsidiaries and (z) inventory or other Property (other than
Investments in Restricted Subsidiaries of the Company and
Stations and Communications Franchises owned or held by such
Restricted Subsidiary) in the ordinary course of business of the
Company or such Restricted Subsidiary and on ordinary business
terms or (b) the entering into of any agreement by the Company or
any of its Restricted Subsidiaries with any other Person pursuant
to which such other Person has the right to use or manage or
otherwise exploit any Property of the Company or such Restricted
Subsidiary (whether now owned or hereafter acquired) and pursuant
to which such other Person is entitled, directly or indirectly,
to retain all or a substantial part of the revenues or net
profits derived from such use or management or other
exploitation. The terms "Dispose" and "Disposed" used as a verb
_______ ________
shall have a correlative meaning.
"Dollars" and "$" shall mean lawful money of the United
_______ _
States of America.
"Effective Date" shall mean the date on which the
______________
Administrative Agent gives notice (such notice to be effective
upon dispatch) to the Company, the Banks, the Co-Agents and the
Collateral Agent that all of the conditions precedent to the
effectiveness of this Agreement and the conversion of the
9
<PAGE>
Credit Agreement
________________
Existing Loans to Loans hereunder and under the Subsidiary Loan
Agreements, as the case may be, set forth in Section 6.01 hereof
shall have been satisfied or waived by such of the Banks or
Agents as are required for such purpose under the terms of this
Agreement.
"Employee Options" shall mean options for Class A
________________
Shares or Class B Shares of the Company or deferred shares issued
or issuable to certain of its employees pursuant to the Deferred
Share Plan, the Stock Option Plan or otherwise, and any
investment option or fund permitting the purchase of Class A
Shares of the Company pursuant to an employee benefit plan
maintained by the Company.
"Environmental Claim" shall mean, with respect to any
___________________
Person, any written notice, claim, demand or other communication
(each, a "claim") by any other Person alleging or asserting such
_____
Person's liability for investigatory costs, cleanup costs,
governmental response costs, damages to natural resources or
other Property or health, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, or
Release, of any Hazardous Material at or from any location,
whether or not owned by such Person, or (ii) circumstances
forming the basis of any violation, or alleged violation, of any
Environmental Law. The term "Environmental Claim" shall include,
without limitation, any claim by any governmental authority for
enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law,
and any claim by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief
resulting from the presence or Release of Hazardous Materials or
arising from alleged injury or threat of injury to health, safety
or the environment.
"Environmental Laws" shall mean any and all Federal,
__________________
state, local and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes.
10
<PAGE>
Credit Agreement
________________
"Equity Issuance" shall mean (a) any issuance or sale
_______________
by the Company or any of its Restricted Subsidiaries after the
Effective Date of any capital stock or Equity Rights for any
capital stock of the Company or any of its Restricted
Subsidiaries or (b) the receipt by the Company or any of its
Restricted Subsidiaries after the Effective Date of any capital
contribution (whether or not evidenced by any equity security
issued by the recipient of such contribution); provided that
________
Equity Issuance shall not include (x) any such issuance or sale
by any Restricted Subsidiary of the Company to the Company or any
Wholly Owned Restricted Subsidiary of the Company, (y) any
capital contribution by the Company or any Wholly Owned
Restricted Subsidiary of the Company to any Restricted Subsidiary
of the Company or (z) any such issuance or sale of any such
capital stock or Equity Rights to directors, officers or
employees of the issuing or selling Person as compensation for
services rendered to the Company or any Restricted Subsidiary.
"Equity Rights" shall mean any outstanding
_____________
subscriptions, options, warrants, commitments, preemptive rights
or agreements of any kind for the issuance, sale or registration
of any shares, and any securities convertible into any shares, of
capital stock of any class, or partnership or other ownership
interests of any type in, any Person.
"ERISA" shall mean the Employee Retirement Income
_____
Security Act of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade
_______________
or business which is a member of the same controlled group of
corporations (within the meaning of Section 414(b) of the Code)
as the Company or is under common control (within the meaning of
Section 414(c) of the Code) with the Company.
"Eurodollar Base Rate" shall mean, with respect to any
____________________
Eurodollar Loan for any Interest Period therefor, the arithmetic
mean, as determined by the Administrative Agent, of the rates per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
quoted by the respective Reference Banks at approximately
11:00 a.m. London time (or as soon thereafter as practicable) on
the date two Business Days prior to the first day of such
Interest Period for the offering by the respective Reference
Banks to leading banks in the London interbank market of Dollar
deposits having a term comparable to such Interest Period and in
an amount equal to $5,000,000.
11
<PAGE>
Credit Agreement
________________
"Eurodollar Loans" shall mean Loans which bear interest
________________
at rates which are determined on the basis of rates referred to
in the definition of "Eurodollar Base Rate" in this Section 1.01.
"Eurodollar Rate" shall mean, for any Eurodollar Loan
_______________
for any Interest Period therefor, a rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined by
the Administrative Agent to be equal to the quotient of (a) the
Eurodollar Base Rate for such Loan for such Interest Period
divided by (b) the result of (i) 1 minus (ii) the Reserve
__________ _____
Requirement for such Loan for such Interest Period.
"Event of Default" shall have the meaning assigned to
________________
such term in Section 9 hereof.
"Excess Cash Flow" shall mean, for any Fiscal Year, the
________________
amount (if any) by which (a) Annualized Consolidated Operating
Cash Flow for 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 Company and its Restricted
Subsidiaries during such Fiscal Year made as permitted by Section
8.05 hereof plus (iii) the aggregate amount of income taxes paid
____
or payable by the Company (excluding any such taxes attributable
to the revenues of Unrestricted Subsidiaries for which the
Company 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 plus (iv) $7,000,000.
____
"Existing Security Agreement" shall mean the Security
___________________________
Agreement dated as of September 22, 1992 between the Company, the
Subsidiaries of the Company identified under the caption
"SUBSIDIARIES" on the signature pages thereof, and Chemical Bank,
as Collateral Agent, as heretofore modified and supplemented and
in effect immediately prior to the Effective Date.
"FCC" shall mean the Federal Communications Commission
___
or any successor thereto.
"FCC Final Order" shall mean an action by the FCC
_______________
approving an Acquisition by the Company or any Restricted
Subsidiary of a Station (a) that has not been vacated, reversed,
stayed, set aside, annulled or suspended or, after the date
hereof, modified in any manner materially adverse to the Company
or such Restricted Subsidiary or any other Restricted Subsidiary,
(b) with respect to which no timely request for stay, petition
for rehearing, reconsideration, or review or appeal is pending
12
<PAGE>
Credit Agreement
________________
and (c) as to which the time for filing any such request,
petition for appeal or for reconsideration or review by the FCC
on its own motion under the Communications Act of 1934, as
amended, and the rules and regulations of the FCC, has expired.
"FCC License" shall mean any radio or other
___________
communications license, permit, franchise, approval or
authorization granted or issued by the FCC.
"Federal Funds Rate" shall mean, for any day, the rate
__________________
per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided that (a) if the day for
which such rate is to be determined is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published
on the next succeeding Business Day, and (b) if such rate is not
so published for any day, the Federal Funds Rate for such day
shall be the average rate charged to Chase on such day on such
transactions as determined by the Administrative Agent.
"Fiscal Year" shall mean a fiscal year of the Company.
___________
"GAAP" shall mean generally accepted accounting
____
principles applied on a basis consistent with those which, in
accordance with Section 1.02(a) hereof, are to be used in making
the calculations for purposes of determining compliance with the
terms of this Agreement.
"Group Cash Flow" shall mean, for any period, the
_______________
aggregate amount, for the Company and its Subsidiaries, of (a)
the sum (determined on a consolidated basis without duplication
in accordance with GAAP) of (i) net revenues of the Company and
its Subsidiaries for such period (calculated before taxes and
excluding (I) any net gain or loss arising from the sale of
capital assets during such period; (II) any gain arising from any
write-up of assets during such period; (III) net earnings for
such period of any Person in which the Company or any of its
Subsidiaries has an ownership interest unless such net earnings
shall have actually been received by the Company or such
Subsidiary in the form of cash distributions; (IV) any portion of
the net earnings of any Subsidiary of the Company or any of its
Subsidiaries for such period which for any reason is unavailable
for payment of dividends to the Company or any other such
13
<PAGE>
Credit Agreement
________________
Subsidiary; (V) any gain realized during such period arising from
the acquisition of any securities of the Company or any of its
Subsidiaries; (VI) any "extraordinary earnings" or "extraordinary
losses" for such period as such terms are interpreted under GAAP;
and (VII) any interest income of the Company and its Subsidiaries
realized during such period) minus (ii) operating expenses of the
_____
Company and its Subsidiaries for such period (excluding
depreciation, amortization, net interest expense and other non-
cash charges accrued, and income taxes paid or accrued, for such
period by the Company and its Subsidiaries) minus (b) Group
_____
Overhead for such period; provided that, if the Company or any of
________
its Subsidiaries shall have Acquired or Disposed of one or more
Stations or one or more commercial radio or other businesses
related to communications or programming (or any part thereof)
during such period, Group Cash Flow for such period shall be
computed as if (in the case of an Acquisition) such Station or
business (or part thereof) had been owned by the Company or such
Subsidiary for the whole of such period or (in the case of a
Disposition) such Station or business (or part thereof) had been
Disposed of prior to the first day of such period.
"Group Debt" shall mean all Indebtedness of the Company
__________
and its Subsidiaries, determined on a consolidated basis.
"Group Debt Ratio" shall mean, as of any date of
________________
determination thereof, the ratio of (a) Group Debt outstanding as
of such date to (b) Group Cash Flow for the period of four fiscal
__
quarters of the Company ended on, or most recently prior to, such
date.
"Group Overhead" shall mean, for any period, corporate
______________
general and administrative expenses of the Company and its
Subsidiaries for such period as shown on the consolidated
financial statements of the Company and its Subsidiaries for such
period delivered to the Administrative Agent; provided that there
________
shall be excluded from "Group Overhead" all non-cash charges.
"Guarantee" shall mean a guarantee, an endorsement, a
_________
contingent agreement to purchase or to furnish funds for the
payment or maintenance of, or otherwise to be or become
contingently liable under or with respect to, the Indebtedness,
other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other
distributions upon the stock or equity interests of any Person,
or an agreement to purchase, sell or lease (as lessee or lessor)
Property, products, materials, supplies or services primarily for
the purpose of enabling a debtor to make payment of his, her or
14
<PAGE>
Credit Agreement
________________
its obligations or an agreement to assure a creditor against
loss, and including, without limitation, causing a bank or other
financial institution to issue a letter of credit or other
similar instrument for the benefit of another Person, but
excluding endorsements for collection or deposit in the ordinary
course of business. The terms "Guarantee" and "Guaranteed" used
_________ __________
as a verb shall have a correlative meaning.
"Guarantee Agreement" shall mean a Guarantee Agreement
___________________
substantially in the form of Exhibit C hereto between the
Obligors and the Administrative Agent, as the same shall be
modified and supplemented and in effect from time to time.
"Guaranteed Obligations" shall mean the "Guaranteed
______________________
Obligations" under and as defined in the Guarantee Agreement.
"Guarantor" shall mean each of the Company and the
_________
Restricted Subsidiaries in its capacity as a guarantor under the
Guarantee Agreement (including, without limitation, each
Restricted Subsidiary which pursuant to Section 8.20 hereof shall
hereafter become a party to the Guarantee Agreement and a
"Guarantor" thereunder).
"Hazardous Material" shall mean, collectively, any oil,
__________________
hazardous waste, hazardous material or hazardous substance as
defined in the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 6921 et seq., the Comprehensive
__ ___
Environmental Response Compensation and Liability Act, as
amended, 42 U.S.C. Section 9601 et seq., or any other Federal or
__ ___
State Environmental Law.
"HBC" shall mean Hemisphere Broadcasting Corporation, a
___
Delaware corporation that is a Wholly Owned Restricted Subsidiary
of the Company.
"HBC Term Loan Agreement" shall mean the Subsidiary
_______________________
Loan Agreement executed and delivered by HBC and the
Administrative Agent as contemplated by Section 2.01(e) hereof.
"HBC Term Loan Notes" shall mean the promissory notes
___________________
of HBC issued pursuant to the HBC Term Loan Agreement as
contemplated by Section 2.07(d) hereof.
"HBC Term Loans" shall mean the loans made to HBC under
______________
the HBC Term Loan Agreement as contemplated by Section 2.01(a)
hereof.
15
<PAGE>
Credit Agreement
________________
"Indebtedness" shall mean, as to any Person, without
____________
duplication: (a) all obligations of such Person for borrowed
money or evidenced by bonds, debentures, notes or similar
instruments; (b) all obligations of such Person for the deferred
purchase price of property or services (including without
limitation deferred payment obligations which are part of the
consideration provided for in agreements not to compete), except
trade accounts payable and accrued liabilities arising in the
ordinary course of business which are not overdue by more than
60 days or which are being contested in good faith by appropriate
proceedings; (c) all Capital Lease Obligations of such Person;
(d) all Indebtedness of others secured by a Lien on any
properties, assets or revenues of such Person; (e) all
Indebtedness of others Guaranteed by such Person; and (f) all
obligations of such Person, contingent or otherwise, in respect
of letters of credit or bankers' acceptances or similar
instruments.
"Indemnification Event" shall mean any event or other
_____________________
circumstance with respect to which any party to any Acquisition
Agreement (other than the Company or any Restricted Subsidiary)
shall be obligated to indemnify, defend and hold the Company or
any of its Subsidiaries harmless against or with respect to, or
with respect to which such party is or may be required to
reimburse the Company or any of its Subsidiaries for, any losses,
liabilities, damages, obligations, actions, suits, proceedings,
claims, demands, assessments, judgments, costs and expenses in
connection with or as a result of the Acquisition to which such
Acquisition Agreement relates.
"Indemnification Payments" shall mean, with respect to
________________________
any Indemnification Event, the aggregate amount of all cash
payments, and the fair market value of any other Property,
received, directly or indirectly, after the date hereof by the
Company or any of its Subsidiaries in connection with or as a
result of such Indemnification Event; provided that
________
"Indemnification Payments" shall not include any such payment or
other Property received by the Company or any of its Subsidiaries
to the extent that the aggregate amount and/or fair market value
of such payments and other Property received by the Company and
its Subsidiaries from and after the Effective Date does not
exceed $1,000,000.
"Indemnity Agreements" shall mean the Indemnity
____________________
Agreements dated as of February 27, 1986 between the Company and
each of the Management Investors, the Indemnity Agreement dated
as of June 22, 1987 between the Company and Mr. Farid Suleman,
16
<PAGE>
Credit Agreement
________________
the Indemnity Agreement dated as of February 4, 1992 between the
Company and Mr. Steven A. Lerman and the Indemnity Agreements
each dated as of November 9, 1992 between the Company and each of
Messrs. Alan R. Batkin and Orenthal J. Simpson, in each case as
the same shall be modified and supplemented and in effect from
time to time.
"Infinity Acquisition Loan Notes" shall mean the
_______________________________
promissory notes of the Company provided for by Section 2.07(c)
hereof and all promissory notes of the Company delivered in
substitution therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
"Infinity Acquisition Loans" shall have the meaning
__________________________
assigned to such term in Section 2.01(c) hereof.
"Infinity of Boston" shall mean Infinity Broadcasting
__________________
Corporation of Boston, a Delaware corporation that is a Wholly
Owned Restricted Subsidiary of the Company.
"Infinity of Boston Acquisition Loan Agreement" shall
_____________________________________________
mean the Subsidiary Loan Agreement executed and delivered by
Infinity of Boston and the Administrative Agent on the Effective
Date as contemplated by Section 2.01(e) hereof.
"Infinity of Boston Acquisition Loan Notes" shall mean
_________________________________________
the promissory notes of Infinity of Boston issued on the
Effective Date pursuant to the Infinity of Boston Acquisition
Loan Agreement as contemplated by Section 2.07(d) hereof.
"Infinity of Boston Acquisition Loans" shall mean the
____________________________________
Infinity Acquisition Loans assumed by Infinity of Boston on the
Effective Date as contemplated by Section 2.01(c) hereof.
"Infinity of California" shall mean Infinity
______________________
Broadcasting Corporation of California, a Delaware corporation
that is a Wholly Owned Restricted Subsidiary of the Company.
"Infinity of California Acquisition Loan Agreement"
_________________________________________________
shall mean the Subsidiary Loan Agreement executed and delivered
by Infinity of California and the Administrative Agent on the
Effective Date as contemplated by Section 2.01(e) hereof.
"Infinity of California Acquisition Loan Notes" shall
_____________________________________________
mean the promissory notes of Infinity of California issued on the
Effective Date pursuant to the Infinity of California Acquisition
Loan Agreement as contemplated by Section 2.07(d) hereof.
17
<PAGE>
Credit Agreement
________________
"Infinity of California Acquisition Loans" shall mean
________________________________________
the Infinity Acquisition Loans assumed by Infinity of California
on the Effective Date as contemplated by Section 2.01(c) hereof.
"Infinity Term Loan Notes" shall mean the promissory
________________________
notes of the Company provided for by Section 2.07(a) hereof and
all promissory notes of the Company delivered in substitution
therefor, in each case as the same shall be modified and
supplemented and in effect from time to time.
"Infinity Term Loans" shall have the meaning assigned
___________________
to such term in Section 2.01(a) hereof.
"Infinity Warrants" shall mean the warrants exercisable
_________________
for Class C Shares of the Company issued to the SLH Investors
pursuant to the Securities Exchange Agreement as the same shall
be modified and supplemented and in effect from time to time.
"Inter-Bank Assignment" shall have the meaning assigned
_____________________
to such term in Section 11.06(a) hereof.
"Interest Accrual Date" shall mean, with respect to any
_____________________
Loan outstanding on the Effective Date, the day immediately
following the last day through which interest has been paid on
such Loan under the Existing Credit Agreement and, with respect
to any other Loan outstanding on any date, the day immediately
following the last day through which interest has been paid on
such Loan; provided that if on the Effective Date or any such
________
other date there shall be outstanding both Base Rate Loans and
Eurodollar Loans and/or Eurodollar Loans having different
Interest Periods, the "Interest Accrual Date" with respect to all
such Loans outstanding on the Effective Date or such other date,
as the case may be, shall be the earliest day as to which
interest has accrued on any of such Loans which interest has not
been paid.
"Interest Period" shall mean (subject to Section
_______________
3.02(d) hereof), with respect to any Eurodollar Loan, each period
commencing on the date such Eurodollar Loan is made or Converted
from a Base Rate Loan or the last day of the immediately
preceding Interest Period for such Loan and ending on the
numerically corresponding day in the first, second, third, sixth
or (in respect of any such Loan of a particular series, with the
approval of all of the Banks holding Loans and/or Commitments of
such series) twelfth calendar month thereafter, as the Company
may select as provided in Section 4.05 hereof, except that each
Interest Period which commences on the last Business Day of a
18
<PAGE>
Credit Agreement
________________
calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent
calendar month. Notwithstanding the foregoing: (a) no Interest
Period for any Loan of any series may commence before and end
after any Principal Payment Date for Loans of such series unless,
after giving effect thereto, the aggregate principal amount of
the Loans of such series having Interest Periods which end after
such Principal Payment Date shall be equal to or less than the
aggregate principal amount of the Loans of such series scheduled
to be outstanding after giving effect to the payments of
principal of such Loans required to be made on such Principal
Payment Date; (b) each Interest Period which would otherwise end
on a day which is not a Business Day shall end on the next
succeeding Business Day (or, if such next succeeding Business Day
falls in the next succeeding calendar month, on the immediately
preceding Business Day); and (c) notwithstanding clause (a)
above, no Interest Period shall have a duration of less than one
month and, if the Interest Period for any Eurodollar Loan would
otherwise be a shorter period, such Loan shall not be available
as a Eurodollar Loan hereunder.
"Interest Rate Protection Agreement" shall mean, 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" shall mean, for any Person: (a) the
__________
acquisition (whether for cash, Property, services or securities
or otherwise) of capital stock, bonds, notes, debentures,
partnership or other ownership interests or other securities of
any other Person or any agreement to make any such acquisition
(including, without limitation, any "short sale" or any sale of
any securities at a time when such securities are not owned by
the Person entering into such short sale); (b) the making of any
deposit with, or advance, loan or other extension of credit to,
any other Person (including the purchase of Property from another
Person subject to an understanding or agreement, contingent or
otherwise, to resell such Property to such Person, but excluding
any such advance, loan or extension of credit having a term not
exceeding 90 days representing the purchase price of inventory,
supplies, goods, services or advertising sold in the ordinary
course of business); or (c) the entering into of any Guarantee
of, or other contingent obligation with respect to, Indebtedness
or other liability of any other Person and (without duplication)
19
<PAGE>
Credit Agreement
________________
any amount committed to be advanced, lent or extended to such
Person.
"Joint Venture" shall mean a joint venture, partnership
_____________
or other similar arrangement, whether in corporate, partnership
or other legal form; provided that, as to any such arrangement in
________
corporate form, such corporation shall not, as to any Person of
which such corporation is a Subsidiary, be considered to be a
Joint Venture to which such Person is a party.
"Karmazin Employment Agreement" shall mean the
_____________________________
employment agreement dated as of September 10, 1990 as amended by
the First Amendment thereto effective as of January 1, 1991, the
Second Amendment thereto effective as of February 4, 1992, the
Third Amendment thereto effective as of June 14, 1993, the Fourth
Amendment thereto effective as of August 16, 1993, the Fifth
Amendment thereto effective as of November 19, 1993 and the Sixth
Amendment thereto effective as of March 30, 1994, as the same
shall be modified and supplemented and in effect from time to
time.
"Karmazin Options" shall mean (a) the options granted
________________
to Mel Karmazin to purchase an aggregate of 936,888 shares of the
Company's Class B Shares, par value $0.002 per share, pursuant to
the Stock Option Agreement and (b) the stock options and deferred
shares issued or issuable to Mel Karmazin pursuant to (i) the
Karmazin Employment Agreement and (ii) the Deferred Share Plan.
"Karmazin Warrants" shall mean the warrants exercisable
_________________
for Class A Shares that may from time to time be issued to Mel
Karmazin pursuant to the Karmazin Employment Agreement.
"Lien" shall mean, with respect to any Property, any
____
mortgage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such Property. For purposes of this
Agreement, the Company or any of its Subsidiaries shall be deemed
to own subject to a Lien any Property which it has acquired or
holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title
retention agreement (other than an operating lease) relating to
such Property.
"Loans" shall mean, collectively, the Term Loans and
_____
the Revolving Credit Loans.
"Majority Banks" shall mean the Majority Term Loan
______________
Banks and Majority Revolving Credit Banks.
20
<PAGE>
Credit Agreement
________________
"Majority Revolving Credit Banks" shall mean, at any
_______________________________
time, Revolving Credit Banks holding at least 51% of the sum of
(a) the aggregate outstanding principal amount of the Revolving
Credit Loans and (b) if the Commitments are then in effect, the
aggregate unused amount of the Commitments.
"Majority Term Loan Banks" shall mean, at any time,
________________________
Term Loan Banks holding at least 51% of the aggregate outstanding
principal amount of the Term Loans.
"Management Employment Agreements" shall mean,
________________________________
collectively, (a) the employment agreement dated as of
December 31, 1985 between the Company and Michael A. Wiener, as
the same shall be modified and supplemented and in effect from
time to time, (b) the employment agreement dated as of
December 31, 1985 between the Company and Gerald Carrus, as the
same shall be modified and supplemented and in effect from time
to time, (c) the Karmazin Employment Agreement, and (d) each of
the Indemnity Agreements.
"Management Investor Agreements" shall mean the Stock
______________________________
Subscription Agreement, the Stock Option Agreement and the
Management Employment Agreements.
"Management Investor Group" shall mean, collectively,
_________________________
the Management Investors and any "Affiliate of Principal
Stockholder" as defined in Section 5.7 of the Restated
Certificate of Incorporation of the Company as filed with the
Secretary of State of the State of Delaware on February 4, 1992
and as in effect on the Effective Date.
"Management Investors" shall mean, collectively,
____________________
Michael A. Wiener, Gerald Carrus and Mel Karmazin.
"Margin Stock" shall mean margin stock within the
____________
meaning of Regulation U and Regulation X.
"Material Adverse Effect" shall mean a material adverse
_______________________
effect on (a) the Property, business, operations, financial
condition, liabilities or capitalization of the Company and its
Restricted Subsidiaries taken as a whole, (b) the ability of any
Obligor to perform its obligations under any of the Basic
Documents to which it is a party, (c) the validity or
enforceability of any of the Basic Documents, (d) the rights and
remedies of any of the Banks and the Agents under any of the
Basic Documents or (e) the timely payment of the principal of or
21
<PAGE>
Credit Agreement
________________
interest on the Loans or other amounts payable in connection
therewith.
"Multiemployer Plan" shall mean a multiemployer plan
__________________
defined as such in Section 3(37) of ERISA to which contributions
have been made by the Company or any ERISA Affiliate and which is
covered by Title IV of ERISA.
"Net Equity Proceeds" shall mean, with respect to any
___________________
Equity Issuance, the aggregate amount of all cash received by the
Company and its Restricted Subsidiaries in respect of such Equity
Issuance net of reasonable expenses incurred by the Company and
its Restricted Subsidiaries in connection therewith.
"New Infinity Warrants" shall mean the warrants
_____________________
exercisable for Class A Shares of the Company issued to Mel
Karmazin pursuant to the Securities Purchase Agreement, as the
same shall be modified and supplemented and in effect from time
to time.
"Notes" shall mean the Infinity Term Loan Notes, the
_____
Working Capital Loan Notes, the Acquisition Loan Notes and the
Subsidiary Loan Notes.
"Obligors" shall mean, collectively, the Company, the
________
Subsidiary Borrowers and the Guarantors.
"Other Pro Forma Interest" shall mean, for any period,
________________________
an aggregate amount equal to interest for such period on an
amount equal to the aggregate principal amount of Indebtedness
referred to in Section 8.07(c) hereof outstanding on the day
immediately preceding such period at the respective rate per
annum equal to the rate specified in the applicable instrument
evidencing or governing the related series of Indebtedness;
provided that interest on a floating rate basis for such period
________
shall be deemed to accrue on such Indebtedness at a rate per
annum equal to the rate of interest with respect to such
Indebtedness in effect on the day immediately preceding such
period.
"PBGC" shall mean the Pension Benefit Guaranty
____
Corporation or any entity succeeding to any or all of its
functions under ERISA.
"Permitted Liens" shall mean:
_______________
22
<PAGE>
Credit Agreement
________________
(a) pledges or deposits by the Company or any of its
Restricted Subsidiaries under workmen's compensation laws,
unemployment insurance laws or similar legislation, or good
faith deposits in connection with bids, tenders, contracts
(other than for the payment of Indebtedness of the Company
or any of its Restricted Subsidiaries), or leases to which
the Company or any of its Restricted Subsidiaries are
parties, deposits to secure public or statutory obligations
of the Company or any of its Restricted Subsidiaries,
deposits of cash or U.S. Government bonds to secure surety
or appeal bonds or performance bonds to which the Company or
any of its Restricted Subsidiaries are parties or which are
issued for their account, or deposits for the payment of
rent (provided that such deposits as security for the
________
payment of rent are required in the ordinary course of
business);
(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 Company or any of its Restricted Subsidiaries with
respect to which the Company 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) Liens for taxes, assessments or other governmental
charges not yet subject to penalties for non-payment and
Liens for taxes, assessments or other governmental charges
the payment of which is being contested in good faith and by
appropriate proceedings and for which adequate reserves,
determined in accordance with GAAP, are being maintained;
(d) minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for,
rights of way, highways and railroad crossings, sewers,
electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions as to the
use of real properties or other Liens incidental to the
conduct of the business of the Company or any of its
Restricted Subsidiaries or to the ownership of their
respective Properties which were not incurred in connection
with Indebtedness of the Company or any of its Restricted
Subsidiaries, which Liens do not in the aggregate materially
detract from the value of said Properties or materially
impair the operation of the business taken as a whole of the
Company or such Restricted Subsidiary;
23
<PAGE>
Credit Agreement
________________
(e) Liens created in connection with Capital Lease
Obligations of the Company or any of its Restricted
Subsidiaries, provided that such Liens do not encumber any
________
Property other than the Property financed by the capital
lease under which such Capital Lease Obligations exist;
(f) existing Liens in respect of Property, assets or
business of the Company or any of its Restricted
Subsidiaries listed on Schedule II hereto;
(g) Liens created pursuant to the Security Documents;
(h) additional Liens upon real and/or personal
Property created after the date hereof in respect of
Indebtedness permitted by Section 8.07(c) hereof, provided
________
that the aggregate amount of the Indebtedness secured
thereby and incurred on and after the date hereof shall not
exceed $5,000,000 in the aggregate at any one time
outstanding;
(i) extensions, renewals, refinancings or replacements
of any Permitted Liens referred to in clauses (a) through
(h), inclusive, above, provided that the principal amount of
________
the obligation secured thereby is not increased and that any
such extension, renewal, refinancing or replacement is
limited to the Property originally encumbered thereby; and
(j) restrictions on the transfer of assets, including
securities, imposed on the Company or any of its
Subsidiaries by the Communications Act of 1934, as amended
or any rules and regulations promulgated thereunder.
"Person" shall mean any individual, corporation,
______
company, voluntary association, partnership, Joint Venture,
trust, unincorporated organization or government (or any agency,
instrumentality or political subdivision thereof).
"Plan" shall mean an employee benefit or other plan
____
established or maintained by the Company or any ERISA Affiliate
and which is covered by Title IV of ERISA, other than a
Multiemployer Plan.
"Post-Default Rate" shall mean, (a) in respect of any
_________________
principal of or interest on any Loan or any other amount payable
by any Obligor under this Agreement, any Note, or any other Basic
Document to which it is a party that is not paid when due
(whether at stated maturity, by acceleration, by optional or
24
<PAGE>
Credit Agreement
________________
mandatory prepayment or otherwise) and (b) in respect of any
Loans outstanding during the continuance of any Event of Default
specified in Section 9(j) hereof, a rate per annum during the
period, in the case of clause (a) above, from and including the
due date to but excluding the date such amount is paid in full
and, in the case of clause (b) above, from and including the date
of the occurrence of such Event of Default to but excluding the
date such Event of Default is cured or is waived (with the
consent of such of the Banks as are required for such purpose
under this Agreement) equal to the lesser of (i) 2% plus the Base
____
Rate as in effect from time to time plus the Applicable Margin
____
for Base Rate Loans (provided that, if any amount in respect of
________
which interest is payable at the Post-Default Rate is principal
of a Eurodollar Loan and the day interest thereon commences to be
payable at the Post-Default Rate is a day other than the last day
of an Interest Period therefor, the "Post-Default Rate" for such
principal shall be, for the period from and including such day to
but excluding the last day of such Interest Period, 2% plus the
____
interest rate for such Loan as provided in Section 3.02(a) hereof
and, thereafter, if the right of the Company (on its own behalf
or on behalf of any Subsidiary Borrower) to Convert any Loan into
a Eurodollar Loan or to Continue any Loan as a Eurodollar Loan
has been suspended as provided in the last sentence of Section
2.08 hereof, the rate provided for above in this definition), and
(ii) the maximum rate permitted by the law of the State of New
York.
"Prime Rate" shall mean the rate of interest from time
__________
to time announced by Chase at the Principal Office as its prime
commercial lending rate.
"Principal Office" shall mean the principal office of
________________
the Administrative Agent and Chase, presently located at 1 Chase
Manhattan Plaza, New York, New York 10081.
"Principal Payment Date" shall mean: (a) with respect
______________________
to Infinity Term Loans, each Quarterly Date on which a principal
payment in respect of such Loans is required to be made pursuant
to Section 3.01(a) hereof; (b) with respect to Revolving Credit
Loans made to the Company, each Quarterly Date on which a
principal payment in respect of such Loans is required to be made
pursuant to Section 3.01(b) hereof; and (c) with respect to
Subsidiary Loans made to any Subsidiary Borrower, each Quarterly
Date on which a principal payment in respect of such Loans is
required to be made pursuant to the Subsidiary Loan Agreement to
which such Subsidiary Borrower is a party.
25
<PAGE>
Credit Agreement
________________
"Pro Forma Debt Service" shall mean, for any period,
______________________
the sum of the following for such period: (a) Pro Forma Interest
for such period plus (b) the aggregate amount of payments of
____
principal scheduled to be made by the Company and its Restricted
Subsidiaries in respect of Indebtedness during such period.
"Pro Forma Interest" shall mean, for any period, the
__________________
sum of the following for such period: (a) Senior Pro Forma
Interest plus (b) Subordinated Pro Forma Interest plus (c) Other
____ ____
Pro Forma Interest.
"Property" shall mean any right or interest in or to
________
property of any kind whatsoever, whether real, personal or mixed
and whether tangible or intangible.
"Qualified Acquisition" shall mean an Acquisition
_____________________
effected as permitted by Section 8.12(d) hereof.
"Quarterly Dates" shall mean the last Business Day of
_______________
March, June, September and December in each year, the first of
which shall be the first such day after the date of this
Agreement.
"Reference Banks" shall mean Chase, The Bank of New
_______________
York and Chemical Bank (or their Applicable Lending Offices, as
the case may be).
"Regulation D", "Regulation U" and "Regulation X" shall
____________ ____________ ____________
mean, respectively, Regulation D, Regulation U and Regulation X
of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be amended or supplemented from time
to time.
"Regulatory Change" shall mean, with respect to any
_________________
Bank, any change after the date of this Agreement in United
States Federal, state or foreign law or regulations (including,
without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to
a class of banks including such Bank of or under any United
States Federal, state or foreign law or regulations (whether or
not having the force of law and whether or not failure to comply
therewith would be unlawful) by any court or governmental or
monetary authority charged with the interpretation or
administration thereof.
"Release" shall mean any "release" as such term is
_______
defined in 42 U.S.C. 9601(22) or any successor statute.
26
<PAGE>
Credit Agreement
________________
"Remaining Net Equity Issuance Proceeds Amount" shall
_____________________________________________
mean, at any time, an amount equal to the amount by which (a) the
sum of (i) $50,000,000 plus (ii) the aggregate amount of Net
____
Equity Proceeds received by the Company and its Restricted
Subsidiaries in respect of all Equity Issuances effected after
the date hereof exceeds (b) the sum of (i) the aggregate amount
_______
of Restricted Payments made as permitted by Section 8.09(c)
hereof after the date hereof plus (ii) the aggregate purchase
____
price paid by the Company and its Restricted Subsidiaries in
respect of Qualified Acquisitions after the date hereof
(exclusive of any portion of such purchase price properly
attributable to the purchase of the net working capital of
Stations Acquired pursuant to such Acquisitions) plus (iii) the
____
aggregate amount of the cash invested by the Company in respect
of cash Investments made as permitted by Section 8.08(h) hereof
after the date hereof.
"Reserve Requirement" shall mean, for any Interest
___________________
Period for any Eurodollar Loan, the average maximum rate at which
reserves (including any marginal, supplemental or emergency
reserves) are required to be maintained during such Interest
Period under Regulation D by member banks of the Federal Reserve
System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used
in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall include any other reserves required
to be maintained by such member banks by reason of any Regulatory
Change against (a) any category of liabilities which includes
deposits by reference to which the Eurodollar Base Rate is to be
determined as provided in the definition of "Eurodollar Base
Rate" in this Section 1.01 or (b) any category of extensions of
credit or other assets which includes Eurodollar Loans.
"Restricted Payments" shall mean: (a) any declaration
___________________
or payment (whether made by the Company or any of its
Subsidiaries) of dividends or other distributions (in cash,
property or obligations) on account of any shares of any class of
stock of the Company; (b) any payment (whether made or effected
by the Company or any of its Subsidiaries, other than any payment
to the Company by any of its Subsidiaries or to any Subsidiary of
the Company by any of such Subsidiary's Subsidiaries) on account
of, or the setting apart of money for a sinking or other
analogous fund for, the purchase, redemption, prepayment,
retirement or other acquisition of, any shares of any class of
stock of the Company or any of its Subsidiaries or any Equity
Rights therefor (including without limitation, the Infinity
Warrants, the Karmazin Options and the Employee Options); (c) any
27
<PAGE>
Credit Agreement
________________
payment (whether made by the Company or any of its Subsidiaries)
on account of the purchase, redemption, prepayment, defeasance
(including, but not limited to, in-substance or legal defeasance)
or other acquisition or retirement for value of any Indebtedness
of the Company which is subordinated to the prior payment of the
Loans; and (d) any payment of management or similar fees by the
Company or any of its Subsidiaries to any Person (other than to
any director of the Company or its Subsidiaries in connection
with the performance of such director's duties in such capacity).
"Restricted Subsidiary" shall mean each Subsidiary of
_____________________
the Company other than an Unrestricted Subsidiary.
"Revolving Credit Banks" shall mean (a) on the date of
______________________
this Agreement, the Banks having Commitments as specified on
Schedule I hereto under the heading "Commitments" and (b)
thereafter, the Banks from time to time holding Revolving Credit
Loans and, if any Commitments are then in effect, Commitments
(after giving effect to any assignments thereof pursuant to
Section 11.06(a) hereof).
"Revolving Credit Loans" shall mean, collectively,
______________________
Working Capital Loans and Acquisition Loans.
"SBC" shall mean Sagittarius Broadcasting Corporation,
___
a New York corporation, that is a Wholly Owned Restricted
Subsidiary of the Company.
"SBC Term Loan Agreement" shall mean the Subsidiary
_______________________
Loan Agreement executed and delivered by SBC and the
Administrative Agent as contemplated by Section 2.01(e) hereof.
"SBC Term Loan Notes" shall mean the promissory notes
___________________
of SBC issued pursuant to the SBC Term Loan Agreement as
contemplated by Section 2.07(d) hereof.
"SBC Term Loans" shall mean the loans made to SBC under
______________
the SBC Term Loan Agreement as contemplated by Section 2.01(a)
hereof.
"Securities Exchange Agreement" shall mean the
_____________________________
Securities Exchange Agreement dated as of January 28, 1992
between the Company and the SLH Investors, as the same shall be
modified and supplemented and in effect from time to time.
"Securities Purchase Agreement" shall mean the
_____________________________
Securities Purchase Agreement dated as of September 30, 1991
28
<PAGE>
Credit Agreement
________________
between the Company, the Management Investors and the SLH
Investors, as the same shall be modified and supplemented and in
effect from time to time.
"Security Agreement" shall mean an Amended and Restated
__________________
Security Agreement substantially in the form of Exhibit D hereto
between the Obligors and the Collateral Agent, as the same shall
be modified and supplemented and in effect from time to time.
"Security Documents" shall mean, collectively, the
__________________
Guarantee Agreement, the Security Agreement and all Uniform
Commercial Code financing statements required by this Agreement
or any Subsidiary Loan Agreement or the Security Agreement to be
filed with respect to the security interests in personal Property
and fixtures created pursuant to the Security Agreement.
"Senior Debt" shall mean all Indebtedness (other than
___________
Subordinated Debt) of the Company and its Restricted
Subsidiaries, determined on a consolidated basis.
"Senior Debt Ratio" shall mean, as of any date of
_________________
determination thereof, the ratio of (a) Senior Debt outstanding
as of such date to (b) Annualized Consolidated Operating Cash
__
Flow for the period of four fiscal quarters of the Company ended
on, or most recently ended prior to, such date.
"Senior Officer" shall mean the Chairman of the Board,
______________
the Co-Chairman of the Board, the President or the Vice
President-Finance of the Company or any Restricted Subsidiary, as
the case may be.
"Senior Pro Forma Interest" shall mean, for any period,
_________________________
an amount equal to interest for such period on an amount equal to
the aggregate principal amount of Loans to the Company and the
Subsidiary Borrowers outstanding on the day immediately preceding
such period at a rate per annum (calculated as provided in
Section 4.03 hereof) equal to the sum of (a) the Eurodollar Rate
on the day immediately preceding such period that would be
applicable to Eurodollar Loans hereunder for an Interest Period
commencing on such date and having a term of three months plus
____
(b) the Applicable Margin for Eurodollar Loans on the day
immediately preceding such period; provided that such rate per
________
annum shall not exceed, for any amount of such Loans as to which
the Company has capped the interest rate thereon by entering into
an Interest Rate Protection Agreement as to a notional amount
equal to such amount of the Loans that is in effect on the day
immediately preceding such period, a rate per annum equal to the
29
<PAGE>
Credit Agreement
________________
capped rate provided for in such Interest Rate Protection
Agreement (but, if such Interest Rate Protection Agreement is
scheduled to terminate prior to the end of such period, only for
that part of such period prior to the scheduled date of
termination) appropriately adjusted to reflect fees and other
costs payable by the Company under such Interest Rate Protection
Agreement to the extent allocable to such period (or part
thereof).
"series" shall have the meaning assigned to such term
______
in Section 1.03 hereof.
"SLH Investors" shall mean, collectively, Lehman
_____________
Brothers Capital Partners II L.P., Lehman Brothers Merchant
Banking Portfolio Partnership L.P., Lehman Brothers Offshore
Investment Partnership Japan II L.P. and Lehman Brothers Offshore
Investment Partnership L.P. and their respective Permitted
Transferees (as such term is defined in the Stockholders'
Agreement).
"Station" shall mean each radio station owned or
_______
operated by, or proposed to be Acquired by, any Restricted
Subsidiary (or, if the context so requires, a Restricted
Subsidiary that owns or operates, or proposes to Acquire, such a
radio station) and shall include, without limitation, tangible
assets used or usable in the operation of such radio station,
real property used in connection with such radio station,
contracts, leases and agreements relating to such radio station,
FCC Licenses required for the operation of such radio station in
accordance with the Communication Act of 1934, as amended, and
the rules and regulations of the FCC promulgated thereunder and
copyrights, trademarks, trade names, logos, jingles, service
marks, slogans and promotional materials used in connection with
such radio station.
"Station Operating Cash Flow" shall mean, for any
___________________________
period, the aggregate amount, for any Station and its
Subsidiaries (if any) proposed to be Acquired as permitted by
Section 8.12(d) hereof, of (a) the sum (determined on a
consolidated basis without duplication in accordance with GAAP)
of (i) net revenues of such Station and its Subsidiaries for such
period (calculated before taxes and excluding (I) any net gain or
loss arising from the sale of capital assets during such period;
(II) any gain arising from any write-up of assets during such
period; (III) net earnings for such period of any Person in which
such Station or any of its Subsidiaries has an ownership interest
unless such net earnings shall have actually been received by
30
<PAGE>
Credit Agreement
________________
such Station or such Subsidiary in the form of cash
distributions; (IV) any portion of the net earnings of any
Subsidiary of such Station or any of its Subsidiaries for such
period which for any reason is unavailable for payment of
dividends to such Station or any other such Subsidiary; (V) any
gain realized during such period arising from the acquisition of
any securities of such Station or any of its Subsidiaries;
(VI) any "extraordinary earnings" or "extraordinary losses" for
such period as such terms are interpreted under GAAP; and
(VII) any interest income of such Station and its Subsidiaries
realized during such period) minus (ii) operating expenses of
_____
such Station and its Subsidiaries for such period (excluding
depreciation, amortization, net interest expense and other non-
cash charges accrued, and income taxes paid or accrued, for such
period by such Station and its Subsidiaries) minus (b) corporate
_____
general and administrative expenses of such Station for such
period; provided that, if such Station or any of its Subsidiaries
________
shall have Acquired or Disposed of one or more Stations or one or
more commercial radio or other businesses related to
communications or programming (or any part thereof) during such
period, Station Operating Cash Flow for such period shall be
computed as if (in the case of an Acquisition) such Station or
business (or part thereof) had been Acquired prior to the first
day of such period or (in the case of a Disposition) such Station
or business (or part thereof) had been Disposed of prior to the
first day of such period.
"Stock Collateral" shall mean the "Stock Collateral"
________________
under and as defined in the Security Agreement.
"Stock Option Agreement" shall mean the Stock Option
______________________
Agreement dated as of June 27, 1988, as amended by the Amendment
Agreement dated as of August 2, 1988 and Amendment No. 1 to Stock
Option Agreement dated as of October 14, 1988, between the
Company and Mel Karmazin, as the same shall be modified and
supplemented and in effect from time to time.
"Stock Option Plan" shall mean the Company's Stock
_________________
Option Plan as amended and restated as of August 16, 1993, as
amended, effective as of November 19, 1993 as the same shall be
modified and supplemented and in effect from time to time.
"Stock Purchase Agreement" shall mean the Stock
________________________
Purchase Agreement dated as of August 3, 1990, as amended by
Amendment No. 1 thereto dated as of September 10, 1990, among the
Company, Michael A. Wiener, Gerald Carrus, certain trusts
affiliated with Michael A. Wiener and Gerald Carrus listed on
31
<PAGE>
Credit Agreement
________________
Schedules 1.1 and 1.2 thereto and each of the SLH Investors, as
the same shall be modified and supplemented and in effect from
time to time.
"Stock Subscription Agreement" shall mean the Amended
____________________________
and Restated Stock Subscription Agreement dated as of August 1,
1988 among the Company and each of the Management Investors, as
the same shall be modified and supplemented and in effect from
time to time.
"Stockholders' Agreement" shall mean the Amended and
_______________________
Restated Stockholders' Agreement dated as of February 5, 1992
among the Company, the SLH Investors and the Management
Investors, as supplemented by the Transferee Agreement dated as
of February 5, 1992, between the Company and BOB & CO., on behalf
of the Jennifer Wiener and Gabriel Wiener Trusts, the Transferee
Agreements dated as of November 29, 1993 between the Company and
each of Mrs. Zena Wiener and The Michael Wiener 1993 Trust, the
Transferee Agreement dated as of December 22, 1993 between the
Company and The Zena and Michael A. Wiener Foundation and the
Transferee Agreement dated as of March 28, 1994 between the
Company and Zena Wiener 1994 Trust, as the same shall be modified
and supplemented and in effect from time to time.
"Subordinated Debt" shall mean all Indebtedness of the
_________________
Company evidenced by the Subordinated Notes.
"Subordinated Debt Documents" shall mean the
___________________________
Subordinated Indenture, the Subordinated Notes and the other
documents and instruments (including, without limitation,
financing agreements, purchase agreements, promissory notes,
indentures and registration rights agreements) evidencing,
providing for or otherwise relating to any Subordinated Debt, in
each case as the same shall be modified and supplemented and in
effect from time to time.
"Subordinated Indenture" shall mean the Indenture dated
______________________
as of March 24, 1992 between the Company and Bank of Montreal
Trust Company, as trustee, as the same shall be modified and
supplemented and in effect from time to time.
"Subordinated Notes" shall mean the Company's 10-3/8%
__________________
Senior Subordinated Notes due 2002 issued pursuant to the
Subordinated Indenture, as the same shall be modified and
supplemented and in effect from time to time.
32
<PAGE>
Credit Agreement
________________
"Subordinated Pro Forma Interest" shall mean, for any
_______________________________
period, an amount equal to interest for such period on an amount
equal to the aggregate principal amount of Subordinated Debt
outstanding in respect of Subordinated Notes on the day
immediately preceding such period at a rate per annum (calculated
as provided therein) equal to 10-3/8%.
"Subsidiary" shall mean, for any Person, any
__________
corporation, partnership or other entity of which at least a
majority of the securities or other ownership interests having by
the terms thereof ordinary voting power to elect a majority of
the board of directors or other persons performing similar
functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other
ownership interests of any other class or classes of such
corporation, partnership or other entity shall have or might have
voting power by reason of the happening of any contingency) is at
the time directly or indirectly owned or controlled by such
Person or one or more Subsidiaries of such Person or by such
Person and one or more Subsidiaries of such Person. "Wholly
______
Owned Subsidiary" shall mean, for any Person, any such
________________
corporation, partnership or other entity of which all of the
securities or other ownership interests (other than, in the case
of a corporation, directors' qualifying shares) are so owned or
controlled.
"Subsidiary Acquisition Loans" shall have the meaning
____________________________
assigned to such term in Section 2.01(c) hereof.
"Subsidiary Borrower" shall mean, collectively, HBC,
___________________
SBC and each other Restricted Subsidiary to which Subsidiary
Acquisition Loans are made, or assigned pursuant to an Assignment
Agreement, including, without limitation, Infinity of Boston and
Infinity of California.
"Subsidiary Loan Agreement" shall mean a Loan Agreement
_________________________
substantially in the form of Exhibit B hereto between a
Subsidiary Borrower and the Administrative Agent, as the same
shall be modified and supplemented and in effect from time to
time.
"Subsidiary Loans" shall mean, collectively, the HBC
________________
Term Loans, the SBC Term Loans and the Subsidiary Acquisition
Loans including, without limitation, Infinity of Boston
Acquisition Loans and Infinity of California Acquisition Loans.
33
<PAGE>
Credit Agreement
________________
"Subsidiary Loan Notes" shall mean, collectively, the
_____________________
HBC Term Loan Notes, the SBC Term Loan Notes and each other
promissory note of any Subsidiary Borrower in respect of
Subsidiary Acquisition Loans made to such Subsidiary Borrower
including, without limitation, Infinity of Boston Acquisition
Loan Notes and Infinity of California Acquisition Loan Notes.
"Tax Allocation Agreements" shall mean each Tax
_________________________
Allocation Agreement substantially in the form of Exhibit I
hereto each between the Company and an Unrestricted Subsidiary,
as the same shall be modified and supplemented and in effect from
time to time.
"Term Loan Banks" shall mean (a) on the date of this
_______________
Agreement, the Banks holding Term Loans as specified on Schedule
I hereto under the heading "Term Loan Banks" and (b) thereafter,
the Banks from time to time holding Term Loans (after giving
effect to any assignments thereof pursuant to Section 11.06(a)
hereof).
"Term Loans" shall mean, collectively, Infinity Term
__________
Loans, HBC Term Loans and SBC Term Loans.
"Total Debt" shall mean all Indebtedness of the Company
__________
and its Restricted Subsidiaries, determined on a consolidated
basis.
"Total Debt Ratio" shall mean, 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 Company ended
on, or most recently ended prior to, such date.
"Total Debt Service" shall mean, as at the last day of
__________________
any Fiscal Year, the sum (calculated without duplication) of all
payments of principal of and interest on Indebtedness of the
Company and its Restricted Subsidiaries made or scheduled to be
made during such Fiscal Year; provided that, for any Fiscal Year
________
ending on or prior to the Commitment Termination Date, "Total
Debt Service" shall include payments of principal of Revolving
Credit Loans made during such Fiscal Year pursuant to Section
3.04 hereof only to the extent and in the amount of any reduction
of Commitments pursuant to Section 2.03 hereof.
"Total Interest" shall mean, for any period, all
______________
interest, whether paid in cash or accrued as a liability, on all
Indebtedness (including imputed interest on Capital Lease
34
<PAGE>
Credit Agreement
________________
Obligations) of the Company and its Restricted Subsidiaries,
determined on a consolidated basis, during such period, provided
________
that there shall be added to "Total Interest" any fees or
commissions or net losses amortized during such period under
Interest Rate Protection Agreements and any fees or commissions
payable in connection with any letters of credit during such
period and there shall be subtracted from "Total Interest" any
net gains under Interest Rate Protection Agreements during such
period and the aggregate amount of interest income in respect of
cash and cash equivalents of the Company and its Restricted
Subsidiaries realized during such period.
"Total Interest Coverage Ratio" shall mean, 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 Company ended on, or most recently ended prior
to, such date to (b) Total Interest for such period.
__
"Total Pro Forma Debt Service Coverage Ratio" shall
___________________________________________
mean, as of any date of determination thereof, the ratio of
(a) the sum of After Tax ACOCF for the period of four fiscal
quarters of the Company ended on, or most recently ended prior
to, such date to (b) Pro Forma Debt Service for the period of
__
four fiscal quarters beginning with the fiscal quarter
immediately following the last fiscal quarter used in the
determination of After Tax ACOCF.
"type" shall have the meaning assigned that term in
____
Section 1.03 hereof.
"Unrestricted Subsidiary" shall mean Infinity Network
_______________________
Inc., UCGI, Inc. and any other Subsidiary of the Company
organized or Acquired after the date hereof and so designated by
the Board of Directors of the Company as an "Unrestricted
Subsidiary" (except that UCGI, Inc. shall be so designated by the
Board of Directors of the Company no later than June 30, 1994)
provided, in each case, that at the time so organized or Acquired
________
and at all times thereafter:
(i) none of the issued and outstanding capital
stock of such Subsidiary (or any Subsidiary of such
Subsidiary) is owned by any Restricted Subsidiary;
(ii) 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,
Properties or any FCC License of, such Subsidiary (or
35
<PAGE>
Credit Agreement
________________
any Subsidiary of such Subsidiary) except to the extent
permitted by Section 8.08(h) hereof;
(iii) neither the Company nor any Restricted
Subsidiary is at the time such Subsidiary (or any
Subsidiary of such Subsidiary) is organized or Acquired
and at all times 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)
except to the extent permitted by Section 8.08(h)
hereof 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 of such
Subsidiary as collateral security for obligations of
such Subsidiary (or any Subsidiary of such Subsidiary);
(iv) 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 Affiliate 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 occurrence of a Default
hereunder, (y) the occurrence of any default or other
event or condition in respect of any other Indebtedness
of the Company or any of its Restricted Subsidiaries
(including, without limitation, Subordinated Debt) or
(z) the occurrence of any event or condition with
respect to the Company or any of its Restricted
Subsidiaries other than any event or condition of the
type described in Section 9(e), (f), (g), (i), (j) or
(o) hereof with respect to the Company;
36
<PAGE>
Credit Agreement
________________
(v) the Company 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;
(vi) such Subsidiary (and any Subsidiary of such
Subsidiary) is an "Unrestricted Subsidiary" under, as
defined in and for all purposes of the Subordinated
Indenture; and
(vii) the Company has notified the Banks as to
the organization or Acquisition of such Subsidiary as
required by Section 8.22(a) hereof and the Company is
in compliance with its other obligations set forth in
Section 8.22 hereof.
"Working Capital Loan Commitment" shall mean, as to
_______________________________
each Revolving Credit Bank, the obligation of such Bank to make
Working Capital Loans in an aggregate principal amount at any one
time outstanding up to but not exceeding (a) in the case of a
Revolving Credit Bank that is a party to this Agreement as of the
date hereof, the amount set forth opposite the name of such Bank
on Schedule I hereto under the heading "Working Capital Loan
Commitments" and (b) in the case of any other Revolving Credit
Bank, the aggregate amount of the Working Capital Loan
Commitments of other Revolving Credit Banks acquired by it
pursuant to Section 11.06(a) hereof (in the case of each of the
foregoing clauses (a) and (b), as the same may be reduced from
time to time pursuant to Section 2.03 hereof or increased or
reduced from time to time pursuant to said Section 11.06(a)).
"Working Capital Loan Notes" shall mean the promissory
__________________________
notes of the Company provided for by Section 2.07(b) hereof and
all promissory notes of the Company delivered in substitution
therefor, in each case as the same shall be modified and
supplemented and in effect from time to time.
"Working Capital Loans" shall have the meaning assigned
_____________________
to such term in Section 2.01(b) hereof.
1.2. Accounting Terms and Determinations.
___________________________________
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all
37
<PAGE>
Credit Agreement
________________
financial statements and certificates and reports as to financial
matters required to be delivered to the Administrative Agent or
the Banks hereunder shall (unless otherwise disclosed to the
Banks as provided in Section 1.02(b) hereof, but subject to
Section 1.02(c) hereof) be prepared, in accordance with GAAP
applied on a basis consistent with the accounting principles used
in the preparation of the audited financial statements of the
Company and its Consolidated Subsidiaries referred to in
Section 7.02 hereof, and all computations made for the purpose of
determining compliance with Section 8 hereof, including
definitions used therein, and made for the purpose of determining
the Applicable Margin and the amount of each prepayment required
by Section 3.04 hereof shall utilize accounting principles and
policies in effect at the time of the preparation of and in
conformity with those used to prepare such audited financial
statements.
(b) The Company shall deliver to the Administrative
Agent and the Banks at the same time as the delivery of any
annual or quarterly financial statement under Section 8.01(a),
8.01(b), 8.01(c) or 8.01(d) hereof a description in reasonable
detail of any material variation between the application of
accounting principles employed in the preparation of such
statement and the application of accounting principles employed
in the preparation of the next preceding annual or quarterly
financial statements and reasonable estimates of the difference
between such statements arising as a consequence thereof.
(c) Except as otherwise provided herein, if any
changes in accounting principles from those used in the
preparation of the audited financial statements referred to in
Section 7.02 hereof are hereafter required or permitted by the
rules, regulations, pronouncements and opinions of the Financial
Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with
similar functions) and are adopted by the Company or any of its
Subsidiaries with the agreement of its independent certified
public accountants and such changes result in a change in the
method of calculation of any of the financial covenants,
standards or terms in or relating to Section 3.04, Section 8 or
any other provision of this Agreement, the parties hereto agree
to enter into discussions with a view to amending such provisions
so as to equitably reflect such changes with the desired result
that the criteria for evaluating the financial condition of the
Company and its Consolidated Subsidiaries shall be the same after
such changes as if such changes had not been made, provided that
no change in such accounting principles that would affect the
38
<PAGE>
Credit Agreement
________________
method of calculation of any of said financial covenants,
standards or terms shall be given effect in such calculations
until such provisions are amended, in a manner satisfactory to
the Majority Banks, to so reflect such change in accounting
principles.
(d) The Company will maintain its accounts and the
accounts of its Subsidiaries on the basis of a calendar year and
the last days of the first three fiscal quarters in each Fiscal
Year of the Company will be March 31, June 30 and September 30 of
each year, respectively.
1.3. Types and Series of Loans and Commitments. Loans
_________________________________________
hereunder are distinguished by "type" and "series" and
Commitments hereunder are distinguished by "series". The "type"
of a Loan refers to whether such Loan is a Base Rate Loan or a
Eurodollar Loan. The "series" of a Loan refers to whether such
Loan is an Infinity Term Loan, a Working Capital Loan, an
Infinity Acquisition Loan, an HBC Term Loan, an SBC Term Loan or
a Subsidiary Acquisition Loan and the "series" of a Commitment
refers to whether such Commitment is a Working Capital Loan
Commitment or an Acquisition Loan Commitment.
Section 2. Commitments.
___________
2.1. Loans.
_____
(a) Term Loans.
__________
(i) Conversion of Term Loans. As of the Effective
________________________
Date, Infinity Term Loans under and as defined in the
Existing Credit Agreement outstanding immediately prior to
the Effective Date shall constitute "Loans" hereunder (such
Loans being herein collectively called "Infinity Term
_____________
Loans"). As of the Effective Date, HBC Term Loans under and
_____
as defined in the Existing Credit Agreement outstanding
immediately prior to the Effective Date shall constitute
"Loans" under the HBC Term Loan Agreement (such Loans being
herein collectively called "HBC Term Loans"). As of the
______________
Effective Date, SBC Term Loans under and as defined in the
Existing Credit Agreement outstanding immediately prior to
the Effective Date shall constitute "Loans" under the SBC
Term Loan Agreement (such Loans being herein collectively
called "SBC Term Loans").
______________
39
<PAGE>
Credit Agreement
________________
(ii) Certain Provisions Relating to Infinity Term
____________________________________________
Loans. Subject to the terms and conditions of this
_____
Agreement, the Company may (as provided in Section 2.08
hereof) Convert Infinity Term Loans of one type into
Infinity Term Loans of the other type or Continue Infinity
Term Loans of one type as Infinity Term Loans of the same
type.
(b) Working Capital Loans. As of the Effective Date,
_____________________
Working Capital Loans under and as defined in the Existing Credit
Agreement outstanding immediately prior to the Effective Date
shall constitute "Loans" hereunder (and, as such, shall
constitute a utilization of each Revolving Credit Bank's Working
Capital Loan Commitment hereunder). Each Revolving Credit Bank
severally agrees, on the terms and conditions of this Agreement,
to make additional loans under its Working Capital Commitment to
the Company on any Business Day during the period from and
including the Effective Date to and including the Commitment
Termination Date in an aggregate principal amount up to but not
exceeding the unused amount of such Bank's Working Capital Loan
Commitment as then in effect. Loans referred to in the first
sentence of this Section 2.01(b) and Loans made pursuant to the
second sentence of this Section 2.01(b) are herein collectively
called "Working Capital Loans". Subject to the terms and
_____________________
conditions of this Agreement, during such period the Company may
borrow, prepay and reborrow the amount of the Working Capital
Loan Commitments by means of Base Rate Loans and Eurodollar Loans
and may (as provided in Section 2.08 hereof) Convert Working
Capital Loans of one type into Working Capital Loans of the other
type or Continue Working Capital Loans of one type as Working
Capital Loans of the same type.
(c) Acquisition Loans. As of the Effective Date,
_________________
Acquisition Loans under and as defined in the Existing Credit
Agreement outstanding immediately prior to the Effective Date
shall constitute "Loans" under the Infinity of Boston Acquisition
Loan Agreement and under the Infinity of California Acquisition
Loan Agreement (and, as such, shall constitute a utilization of
each Revolving Credit Bank's Acquisition Loan Commitment
hereunder), such "Loans" to be allocated as between Infinity of
Boston and Infinity of California as follows: (I) Acquisition
Loans under and as defined in the Existing Credit Agreement in
aggregate principal amount equal to $30,000,000 shall constitute
"Loans" to Infinity of Boston under the Infinity of Boston
Acquisition Loan Agreement and (II) Acquisition Loans under and
as defined in the Existing Credit Agreement in aggregate
principal amount equal to $85,000,000 shall constitute "Loans" to
40
<PAGE>
Credit Agreement
________________
Infinity of California under the Infinity of California
Acquisition Loan Agreement. Each Revolving Credit Bank severally
agrees, on the terms and conditions of this Agreement, to make
additional loans under its Acquisition Loan Commitment to the
Company and, subject to the provisions of Section 2.01(d) hereof,
the Restricted Subsidiaries on any Business Day during the period
from and including the Effective Date to and including the
Commitment Termination Date in an aggregate principal amount up
to but not exceeding the unused amount of such Bank's Acquisition
Loan Commitment as then in effect. Loans referred to in the
first sentence of this Section 2.01(c) that were made to the
Company and Loans made to the Company pursuant to the second
sentence of this Section 2.01(c) are herein collectively called
"Infinity Acquisition Loans". Loans made to any Restricted
__________________________
Subsidiary pursuant to the second sentence of this Section
2.01(c) and Infinity Acquisition Loans assigned by the Company to
any Restricted Subsidiary as provided in Section 2.01(d)(ii)
hereof are herein collectively called "Subsidiary Acquisition
______________________
Loans" and, upon the effectiveness of any such assignment of
_____
Infinity Acquisition Loans, the Infinity Acquisition Loans so
assigned shall cease to be "Infinity Acquisition Loans" for
purposes of this Agreement. Subject to the terms and conditions
of this Agreement, during such period (x) the Company (but not
any Restricted Subsidiary) may borrow, prepay and reborrow the
amount of the Acquisition Loan Commitments by means of Base Rate
Loans and Eurodollar Loans and may (as provided in Section 2.08
hereof) Convert Acquisition Loans of one type into Acquisition
Loans of the other type or Continue Acquisition Loans of one type
as Acquisition Loans of the same type and (y) any Restricted
Subsidiary may borrow and, subject to the provisions of the
Subsidiary Loan Agreement to which such Restricted Subsidiary is
a party, prepay Acquisition Loans made to it on the terms and
conditions (including as to type of Loan) set forth herein and in
such Subsidiary Loan Agreement.
(d) Subsidiary Acquisition Loans.
____________________________
(i) Satisfaction of Conditions. No Acquisition
__________________________
Loan to any Subsidiary Borrower shall be made to such
Subsidiary Borrower unless, prior to or simultaneously
with the making of such Loan, each of the conditions
precedent specified in Section 6.02 hereof relating to
such Subsidiary Borrower, each of the conditions
precedent specified in Section 6.03 hereof relating to
the related Acquisition and each of the conditions
precedent specified in Section 6.04 hereof shall be
satisfied or waived with the consent of such of the
41
<PAGE>
Credit Agreement
________________
Banks as are required for such purpose under this
Agreement.
(ii) Assignments of Acquisition Loans. At any
________________________________
time after the Company borrows any Acquisition Loan
hereunder, the Company may assign such Acquisition Loan
and the Company's obligations with respect thereto to
any Restricted Subsidiary which shall thereupon become
a Subsidiary Borrower hereunder and under the
Subsidiary Loan Agreement to which it is a party;
provided that (x) each of the conditions precedent
________
specified in Section 6.02 hereof relating to such
Restricted Subsidiary shall be satisfied or waived with
the consent of such of the Banks as are required for
such purpose under this Agreement, (y) the Company and
such Restricted Subsidiary shall have executed and
delivered to the Administrative Agent a duly completed
Assignment Agreement with respect to the Acquisition
Loan so assigned and (z) such Restricted Subsidiary
would have been entitled to borrow such Acquisition
Loan directly from the Revolving Credit Banks in
accordance with Section 6.03 hereof.
(e) Subsidiary Loan Agreements. The Subsidiary Loans
__________________________
made to any Subsidiary Borrower shall be governed by a Subsidiary
Loan Agreement between such Subsidiary Borrower and the
Administrative Agent.
2.2. Borrowings. The Company shall give the
__________
Administrative Agent (which shall promptly notify the Term Loan
Banks, the Working Capital Loan Banks and/or the Acquisition Loan
Banks, as applicable) notice of each borrowing by it hereunder or
by any Subsidiary Borrower under the Subsidiary Loan Agreement to
which such Subsidiary is a party as provided in Section 4.05
hereof. Not later than 12:00 noon New York time on the date
specified for each borrowing hereunder, each such Bank shall make
available the amount of the Loan(s) to be made by it on such date
to the Administrative Agent, at account number
NYAO-DI-900-9-000002 maintained by the Administrative Agent with
Chase at the Principal Office, in immediately available funds,
for account of the Company or such Subsidiary Borrower, as the
case may be. The amount so received by the Administrative Agent
shall, subject to the terms and conditions of this Agreement
and/or the related Subsidiary Loan Agreement, as the case may be,
be made available to the Company or such Subsidiary Borrower, as
the case may be, by depositing the same, in immediately available
funds, in an account of the Company or such Subsidiary Borrower,
42
<PAGE>
Credit Agreement
________________
as the case may be, maintained with Chase at the Principal Office
designated by the Company or by wiring the same, in immediately
available funds, to any account specified by the Company in the
related notice of such borrowing.
2.3. Changes of Commitments.
______________________
(a) Voluntary. The Company shall have the right to
_________
terminate or reduce the aggregate amount of the Working Capital
Loan Commitments and/or the Acquisition Loan Commitments, as the
case may be, at any time or from time to time prior to the
Commitment Termination Date; provided that (x) the Company shall
________
give notice of each such termination or reduction as provided in
Section 4.05 hereof and (y) each partial reduction shall be in an
aggregate amount at least equal to $1,000,000 or any integral
multiple of $1,000,000 in excess thereof (or, if less, the
aggregate amount of Working Capital Loan Commitments or
Acquisition Loan Commitments, as the case may be, then
remaining).
(b) Mandatory.
_________
(i) The aggregate amount of the Commitments shall be
automatically reduced to zero and the Commitments shall
terminate at the close of business on the Commitment
Termination Date.
(ii) Each series of Commitments shall be automatically
reduced by the amount of any prepayment of Loans of the
related series made as required by Section 3.04 hereof
(other than, with respect to the Working Capital Loan
Commitments, paragraph (e) thereof and, with respect to the
Acquisition Loan Commitments, paragraph (d) or (f) thereof)
or, if any of the events described in said Section 3.04
occurs at any time when no Loans of such series are
outstanding or when Loans of such series are outstanding in
an amount less than the amount of such series of Commitments
as then in effect, which would have been required to be made
if Loans had been outstanding in an aggregate principal
amount equal to the aggregate amount of the Commitments on
the date of such occurrence.
(c) Effect of Commitment Reductions. Commitments once
_______________________________
terminated or reduced may not be reinstated.
2.4. Certain Fees. The Company shall pay to the
____________
Administrative Agent a commitment fee on the daily average unused
43
<PAGE>
Credit Agreement
________________
amount of each Commitment (as defined in the Existing Credit
Agreement) held by a Revolving Credit Bank (as so defined) for
account of such Revolving Credit Bank (as so defined), for the
period from and including the day immediately following the day
through which accrued commitment fees had been paid under the
Existing Credit Agreement to but not including the Effective
Date, at a rate per annum equal to 3/8 of 1%. The Company shall
pay to the Administrative Agent a commitment fee on the daily
average unused amount of each Commitment held by a Revolving
Credit Bank for account of such Revolving Credit Bank, for the
period from and including the Effective Date to but not including
the earlier of the date such Commitment is terminated and the
Commitment Termination Date, at a rate per annum equal to 3/8 of
1%. Accrued commitment fees shall be payable on each Quarterly
Date occurring on or after the Quarterly Date falling on or
nearest to June 30, 1994 and on the date the relevant Commitment
is terminated or expires.
2.5. Lending Offices. The Loans of each type made by
_______________
each Bank shall be made and maintained at such Bank's Applicable
Lending Office for Loans of such type.
2.6. Several Obligations; Remedies Independent. The
_________________________________________
failure of any Bank to make any Loan to be made by it on the date
specified therefor shall not relieve any other Bank of its
obligation to make any Loan on such date, but neither any Bank
nor the Agents shall be responsible for the failure of any other
Bank to make a Loan to be made by such other Bank. The amounts
payable by the Company at any time hereunder and under its Notes
and by each Subsidiary Borrower at any time under the Subsidiary
Loan Agreement to which such Subsidiary Borrower is a party and
under its Notes to each Bank shall be a separate and independent
debt and each Bank shall be entitled to protect and enforce its
rights arising out of this Agreement, any Subsidiary Loan
Agreement and the Notes, and it shall not be necessary for any
other Bank or the Agents to consent to, or be joined as an
additional party in, any proceedings for such purposes.
2.7. Notes.
_____
(a) The Infinity Term Loans held by each Term Loan
Bank shall be evidenced by a single promissory note (each, an
"Infinity Term Loan Note") of the Company in substantially the
_______________________
form of Exhibit A-1 hereto, dated the Interest Accrual Date for
such Loans, payable to the order of such Bank in a principal
amount equal to the amount of such Bank's outstanding Infinity
Term Loans as of such date and otherwise duly completed.
44
<PAGE>
Credit Agreement
________________
(b) The Working Capital Loans made by each Revolving
Credit Bank shall be evidenced by a single promissory note (each,
a "Working Capital Loan Note") of the Company in substantially
_________________________
the form of Exhibit A-2 hereto, dated the Interest Accrual Date
for such Loans (or, if no Working Capital Loans are outstanding
on the Effective Date, the Effective Date), payable to the order
of such Bank in a principal amount equal to the amount of such
Bank's Working Capital Loan Commitment as in effect on the date
of such promissory note (or, if no Working Capital Loans are
outstanding on the Effective Date, Effective Date) and otherwise
duly completed.
(c) The Infinity Acquisition Loans held by each
Revolving Credit Bank shall be evidenced by a single promissory
note (each, an "Infinity Acquisition Loan Note") of the Company
______________________________
in substantially the form of Exhibit A-3 hereto, dated the
Effective Date, payable to the order of such Bank in a principal
amount equal to the amount of such Bank's Acquisition Loan
Commitment as in effect on the date of such promissory note (or,
if no Acquisition Loans are outstanding on the Effective Date,
Effective Date) and otherwise duly completed.
(d) Loans to any Subsidiary Borrower held by any
Revolving Credit Bank, and Loans to the Company held by any
Revolving Credit Bank that are assigned to, and assumed by, any
Subsidiary Borrower as contemplated by Section 2.01(d)(ii)
hereof, shall be evidenced by a single promissory note (each, a
"Subsidiary Loan Note") of such Subsidiary Borrower in
____________________
substantially the form of Exhibit A-4 hereto, dated, in the case
of HBC Term Loans, SBC Term Loans, Infinity of Boston Acquisition
Loans, Infinity of California Acquisition Loans and additional
Loans to the Company held by such Bank that are assigned to, and
assumed by, any Subsidiary Borrower, the Interest Accrual Date
for such Loans and, in the case of all other Subsidiary Loans,
the date such Loans are made to such Subsidiary Borrower payable
to the order of such Bank in a principal amount equal to the
amount of such Bank's Loans to such Subsidiary Borrower made on
such date and otherwise duly completed.
(e) The date, amount, type, interest rate, and
duration of Interest Period (if applicable) of each Loan of any
series held by any Bank, and each payment made on account of the
principal thereof, shall be recorded by such Bank on its books
and, prior to any transfer of the Note evidencing such Loans of
such series held by such Bank, endorsed by such Bank on the
schedule attached to such Note or any continuation thereof;
provided that the failure of such Bank to make any such
________
45
<PAGE>
Credit Agreement
________________
recordation or endorsement shall not affect the obligations of
the Company or the relevant Subsidiary Borrower, as the case may
be, to make a payment when due of any amount owing under such
Note.
(f) No Bank shall be entitled to have its Notes
subdivided, by exchange for promissory notes of lesser
denominations or otherwise, except in connection with a permitted
assignment of all or any portion of such Bank's relevant
Commitments, Loans and/or Notes pursuant to Section 11.06 hereof.
2.8. Conversions or Continuations of Loans. Subject
_____________________________________
to Section 4.04 hereof, the Company (on its own behalf and on
behalf of any Subsidiary Borrower) shall have the right to
Convert Loans of one type and series into Loans of the other type
of the same series or Continue Loans of one type and series as
Loans of the same type and series, at any time or from time to
time, provided that: (a) the Company shall give the
________
Administrative Agent notice of each such Conversion or
Continuation as provided in Section 4.05 hereof; and
(b) Eurodollar Loans hereunder and Eurodollar Loans under and as
defined in each Subsidiary Loan Agreement may be Converted only
on the last day of an Interest Period (as defined herein and
therein) for such Loans. All borrowings, Conversions and
Continuations of Loans hereunder and under the Subsidiary Loan
Agreements and all selections of Interest Periods (as so defined)
hereunder and under the Subsidiary Loan Agreements shall be in
such amounts and be made pursuant to such elections so that,
after giving effect thereto, at no time will the aggregate number
of Eurodollar Tranches exceed seven. As used in this Section
2.08, the term "Eurodollar Tranche" is the collective reference
__________________
to Eurodollar Loans hereunder and under the Subsidiary Loan
Agreements the Interest Periods with respect to which begin on
the same date and end on the same later date (whether or not such
Eurodollar Loans shall originally have been made on the same
date). Notwithstanding the foregoing, and without limiting the
rights and remedies of the Banks under Section 9 hereof, in the
event that any Event of Default shall have occurred and be
continuing, the Administrative Agent may (and at the request of
the Majority Banks shall) suspend the right of the Company (on
its own behalf and on behalf of any Subsidiary Borrower) to
Convert any Loan into a Eurodollar Loan, or to Continue any Loan
as a Eurodollar Loan, in which event all Loans shall be Converted
(on the last day(s) of the respective Interest Periods therefor
into Base Rate Loans) or, if outstanding as Base Rate Loans,
Continued as Base Rate Loans.
46
<PAGE>
Credit Agreement
________________
Section 3. Payments of Principal and Interest.
__________________________________
3.1. Repayment of Loans.
__________________
(a) The Company hereby promises to pay to the
Administrative Agent for account of each Term Loan Bank the
portion of the principal of the Infinity Term Loans equal to the
Designated Principal Amount (as defined below) of Infinity Term
Loans made to the Company and held by such Bank that is
outstanding on the Effective Date in thirty installments payable
on the Principal Payment Dates as follows:
Principal Payment Date Percentage of Designated
Falling on or Nearest To: Principal Amount (%)
_________________________ ____________________
June 30, 1994 4.250%
September 30, 1994 4.250%
December 31, 1994 4.250%
March 31, 1995 4.250%
June 30, 1995 4.250%
September 30, 1995 4.250%
December 31, 1995 4.250%
March 31, 1996 1.875%
June 30, 1996 1.875%
September 30, 1996 1.875%
December 31, 1996 1.875%
March 31, 1997 1.500%
June 30, 1997 1.500%
September 30, 1997 1.500%
December 31, 1997 1.500%
March 31, 1998 1.500%
June 30, 1998 1.500%
September 30, 1998 1.500%
December 31, 1998 1.500%
March 31, 1999 2.500%
June 30, 1999 2.500%
September 30, 1999 2.500%
December 31, 1999 2.500%
March 31, 2000 3.125%
June 30, 2000 3.125%
September 30, 2000 3.125%
December 31, 2000 3.125%
March 31, 2001 4.667%
June 30, 2001 4.667%
September 30, 2001 4.667%
47
<PAGE>
Credit Agreement
________________
For purposes of this Section 3.01(a), "Designated Principal
____________________
Amount" with respect to Infinity Term Loans shall mean
______
$25,000,000.
(b) The Company hereby promises to pay to the
Administrative Agent for account of each Working Capital Loan
Bank and Acquisition Loan Bank the aggregate principal amount of
the Working Capital Loans and Infinity Acquisition Loans,
respectively, outstanding on the Commitment Termination Date and
held by such Bank in twenty-four consecutive installments payable
on the Principal Payment Dates as follows (each such installment
to be in an amount equal to the product of (i) the aggregate
outstanding principal amount of the Working Capital Loans or the
Infinity Acquisition Loans, as the case may be, on the Commitment
Termination Date times (ii) the percentage set forth below
_____
opposite each such Principal Payment Date):
Principal Payment Date Percentage of
Falling on or Nearest To: Principal Amount (%)
_________________________ ____________________
December 31, 1995 4.1700%
March 31, 1996 4.1675%
June 30, 1996 4.1675%
September 30, 1996 4.1675%
December 31, 1996 4.1675%
March 31, 1997 4.1675%
June 30, 1997 4.1675%
September 30, 1997 4.1675%
December 31, 1997 4.1675%
March 31, 1998 4.1675%
June 30, 1998 4.1675%
September 30, 1998 4.1675%
December 31, 1998 4.1675%
March 31, 1999 4.1675%
June 30, 1999 4.1675%
September 30, 1999 4.1675%
December 31, 1999 4.1675%
March 31, 2000 4.1675%
June 30, 2000 4.1675%
September 30, 2000 4.1675%
December 31, 2000 4.1675%
March 31, 2001 4.1600%
June 30, 2001 4.1600%
September 30, 2001 4.1600%
48
<PAGE>
Credit Agreement
________________
3.2. Interest.
________
(a) The Company hereby promises to pay to the
Administrative Agent for account of each Bank interest on the
unpaid principal amount of each Loan of such Bank hereunder for
the period commencing on and including the date of such Loan to
but excluding the date such Loan is paid in full, at the
following rates per annum:
(i) during any period while such Loan is a Base
Rate Loan, the Base Rate (as in effect from time to time)
plus the Applicable Margin; and
____
(ii) during any period while such Loan is a
Eurodollar Loan, for each Interest Period relating thereto,
the Eurodollar Rate for such Loan for such Interest Period
plus the Applicable Margin.
____
(b) Notwithstanding the foregoing, to the maximum
extent permitted by the law of the State of New York, the Company
hereby promises to pay to the Administrative Agent for account of
each Bank interest at the applicable Post-Default Rate on any
principal of or interest on any of the Loans hereunder held by
such Bank and on any other amount payable by the Company
hereunder or under its Notes held by such Bank to or for account
of such Bank (i) which shall not be paid in full when due
(whether at stated maturity, by acceleration, by mandatory or
optional prepayment or otherwise) for the period from and
including the due date thereof to but excluding the date the same
is paid in full and (ii) during the continuance of an Event of
Default specified in Section 9(j) hereof for the period from and
including the date of the occurrence of such Event of Default to
but excluding the date such Event of Default is cured or waived
(with the consent of such of the Banks as are required for such
purpose under this Agreement).
(c) Accrued interest on each Loan hereunder shall be
payable (i) in the case of a Base Rate Loan, quarterly on the
Quarterly Dates, (ii) in the case of a Eurodollar Loan, on the
last day of each Interest Period therefor and, if such Interest
Period is longer than three months, at three-month intervals
following the first day of such Interest Period, and (iii) in the
case of any Loan, upon the payment or prepayment thereof or the
Conversion of such Loan to a Loan of the other type (but only on
the principal amount so paid, prepaid or Converted), except that
interest payable at the Post-Default Rate shall be payable from
time to time on demand. Promptly after the determination of any
49
<PAGE>
Credit Agreement
________________
interest rate provided for herein or any change therein, the
Administrative Agent shall give notice thereof to the Banks to
which such interest is payable and to the Company.
(d) Anything in this Agreement to the contrary
notwithstanding, with respect to each of the Loans made to the
Company under the Existing Credit Agreement prior to the
Effective Date and outstanding on the Effective Date as
Eurodollar Loans: (i) the Interest Period in effect for such
Loan under the Existing Credit Agreement on the Effective Date
shall be the initial Interest Period for such Loan hereunder;
(ii) the first day of such Interest Period for all purposes
hereunder shall be the first day of such Interest Period under
the Existing Credit Agreement; and (iii) the rate of interest
applicable to such Loan for such Interest Period shall be the
Eurodollar Rate (under and as defined in the Existing Credit
Agreement) for such Loan for such Interest Period plus, during
____
the portion of such Interest Period ending on the Effective Date,
the Applicable Margin for such Loan provided for in Section 1.01
of the Existing Credit Agreement and, during that portion of such
Interest Period commencing on the Effective Date, the Applicable
Margin for such Loan provided for in Section 1.01 of this
Agreement.
3.3. Optional Prepayments. Subject to Section 4.04
____________________
hereof, the Company shall have the right to prepay Loans
hereunder and to cause any Subsidiary Borrower to prepay Loans
under the Subsidiary Loan Agreement to which it is a party at any
time or from time to time, provided that: (a) the Company shall
________
give the Administrative Agent notice of each such prepayment as
provided in Section 4.05 hereof (and, upon the date specified in
any such notice of prepayment, the amount to be prepaid shall
become due and payable hereunder or under the related Subsidiary
Loan Agreement, as the case may be, unless such notice of
prepayment shall be revoked as provided in said Section 4.05);
(b) prior to the Commitment Termination Date, each partial
prepayment shall, at the option of the Company, be applied to the
prepayment of Working Capital Loans and/or Acquisition Loans or,
to the extent not so applied, shall be applied to the prepayment
of the Infinity Term Loans (the amount of the Infinity Term Loans
so prepaid to be applied to the remaining installments of such
Loans in the inverse order of maturity), and then, after all
Infinity Term Loans have been paid in full, to the prepayment of
Subsidiary Loans that are Term Loans pro rata in accordance with
the respective aggregate principal amounts of the Loans of such
series (the amount of the Loans of each such series so prepaid to
be applied to the remaining installments of such Loans in the
50
<PAGE>
Credit Agreement
________________
inverse order of maturity), and then, after all Term Loans have
been paid in full, to Working Capital Loans or Acquisition Loans
as the Company shall specify in the related notice of prepayment;
and (c) from and after the Commitment Termination Date, each
partial prepayment shall be applied to the prepayment of Infinity
Term Loans, Working Capital Loans and Infinity Acquisition Loans
pro rata in accordance with the respective aggregate principal
amounts of the Loans of such series (the amount of the Loans of
each such series so prepaid to be applied to the remaining
installments of such Loans in the inverse order of maturity), and
then, after all Infinity Term Loans, Working Capital Loans and
Infinity Acquisition Loans have been paid in full, to the
prepayment of Subsidiary Loans pro rata in accordance with the
respective aggregate principal amounts of the Loans of such
series (the amount of the Loans of each such series so prepaid to
be applied to the remaining installments of such Loans in the
inverse order of maturity); provided that (i) nothing in this
________
Section 3.03 shall relieve the Company from its obligations under
Section 5 hereof and (ii) if the Company so elects by notice to
the Administrative Agent, all or that part (as specified by the
Company in such notice) of any amount required by clause (b) or
(c) above to be applied to the installments of Loans of any
series in the inverse order of maturity shall instead be applied
to the installments of the Loans of such series in the direct
order of their maturity except that no such installment scheduled
to be paid after the date which is 270 days after the date of
such prepayment may be prepaid pursuant to this proviso.
3.4. Mandatory Prepayments. The Company agrees to
_____________________
prepay or cause to be prepaid the Loans as follows:
(a) Dispositions. Upon the receipt by the Company or
____________
any Restricted Subsidiary of the proceeds of any Disposition, the
principal of the Loans shall be prepaid (as specified in
paragraph (g) below) in an amount equal to 100% of the net
proceeds of such Disposition. For purposes of this
Section 3.04(a), "net proceeds" shall mean all cash amounts
received in respect of any such Disposition (including any cash
amounts received by way of deferred payment pursuant to a note
receivable or otherwise but only as and when received), net of
(i) expenses incurred in connection with such Disposition and
taxes paid (or reasonably estimated to be payable) in connection
therewith and (ii) contractually required repayments of
Indebtedness payable to Persons other than the Banks hereunder to
the extent secured by a Lien on the relevant Properties Disposed
of.
51
<PAGE>
Credit Agreement
________________
(b) Casualty Events. In the event of the receipt by
_______________
the Company or any Restricted Subsidiary of the proceeds of any
property or casualty insurance (excluding, however, any business
interruption insurance), except to the extent such proceeds are
to be applied reasonably promptly towards the repair,
reconstruction or replacement of the property the damage to or
loss of which gave rise to the payment thereof, the principal of
the Loans shall be prepaid (as specified in paragraph (g) below)
in an amount equal to such proceeds, provided that (i) for
________
purposes of determining the amount of such proceeds to be so
applied, such proceeds shall be net of taxes paid (or reasonably
estimated to be payable) in connection therewith and of
contractually required repayments of Indebtedness payable to
Persons other than the Banks hereunder to the extent secured by a
Lien on such property and (ii) subject to clause (i) above, if at
the time such proceeds are received by the Company or any of its
Subsidiaries a default in payment of the Loans shall have
occurred and be continuing, such proceeds shall be applied to the
prepayment of such Loans in the manner required by this
Section 3.04(b) and shall not be used for the repair,
reconstruction or replacement of such property.
(c) Excess Cash Flow. Upon the date of the delivery
________________
of the financial statements of the Company pursuant to
Section 8.01(d) hereof, but in no event later than May 31 in each
Fiscal Year commencing May 31, 1995, the principal of Loans shall
be prepaid (as specified in paragraph (g) below) in an aggregate
amount equal to 50% of Excess Cash Flow for the immediately
preceding Fiscal Year.
(d) Indemnification Events. In the event of receipt
______________________
by the Company or any Subsidiary of any Indemnification Payments,
except to the extent such Indemnification Payments are made to
compensate the Company or such Subsidiary for actual out-of-
pocket costs arising from the related Indemnification Event, the
principal of the Loans shall be prepaid (as specified in
paragraph (g) below) in an amount equal to the amount of such
Indemnification Payments, provided that (i) for purposes of
________
determining the amount of such Indemnification Payments to be so
applied, such amount shall be net of taxes paid (or reasonably
estimated to be payable) in connection therewith and (ii) subject
to clause (i) above, if at the time such Indemnification Payments
are received by the Company or any of its Subsidiaries a default
in payment of any Loans shall have occurred and be continuing,
such Indemnification Payments shall be applied to the prepayment
of such Loans in the manner required by this Section 3.04(d) and
shall not be used to compensate the Company or such Subsidiary
52
<PAGE>
Credit Agreement
________________
for actual out-of-pocket costs arising from the related
Indemnification Event.
(e) Reductions of Working Capital Loan Commitments.
______________________________________________
Upon each reduction in the aggregate amount of the Working
Capital Loan Commitments pursuant to Section 2.03 hereof to an
aggregate amount less than the then aggregate outstanding
principal amount of the Working Capital Loans, Working Capital
Loans shall be prepaid in an amount required so that, after
giving effect thereto, the aggregate outstanding principal amount
of Working Capital Loans is less than or equal to the amount of
the Working Capital Loan Commitments as so reduced.
(f) Reductions of Acquisition Loan Commitments. Upon
__________________________________________
each reduction in the aggregate amount of the Acquisition Loan
Commitments pursuant to Section 2.03 hereof to an aggregate
amount less than the then aggregate outstanding principal amount
of the Acquisition Loans, Acquisition Loans shall be prepaid in
an amount required so that, after giving effect thereto, the
aggregate outstanding principal amount of Acquisition Loans is
less than or equal to the amount of Acquisition Loan Commitments
as so reduced.
(g) Application and Timing of Payments.
__________________________________
(i) Prior to the Commitment Termination Date, (w) each
prepayment under this Section 3.04 (other than paragraphs
(d), (e) and (f) of this Section 3.04) shall be applied,
first, to the prepayment of Infinity Term Loans (the amount
of Infinity Term Loans so prepaid to be applied to the
remaining installments of such Loans in the inverse order of
maturity), and then, after all Infinity Term Loans have been
paid in full, to the prepayment of HBC Term Loans and SBC
Term Loans pro rata in accordance with the respective
aggregate principal amounts of the Loans of such series (the
amount of the Loans of each such series so prepaid to be
applied to the remaining installments of such Loans in the
inverse order of maturity), and then, after all Term Loans
have been paid in full, to the prepayment of Working Capital
Loans, and then, after all Working Capital Loans have been
paid in full, to the prepayment of Infinity Acquisition
Loans, and then, after all Infinity Acquisition Loans have
been paid in full, to the prepayment of Subsidiary
Acquisition Loans pro rata in accordance with the respective
aggregate principal amounts of the Loans of such series, (x)
each prepayment under Section 3.04(d) hereof shall be
applied, first to the prepayment of Infinity Acquisition
53
<PAGE>
Credit Agreement
________________
Loans, and then, after all Infinity Acquisition Loans have
been paid in full, to the prepayment of Subsidiary
Acquisition Loans pro rata in accordance with the respective
aggregate principal amounts of the Loans of such series, and
then after all Acquisition Loans have been paid in full, to
the prepayment of all other Loans as specified in clause (w)
above, (y) each prepayment under Section 3.04(e) hereof
shall be applied to the prepayment of Working Capital Loans
and (z) each prepayment under Section 3.04(f) hereof shall
be applied, first, to the prepayment of Infinity Acquisition
Loans, and then after all Infinity Acquisition Loans have
been paid in full, to the prepayment of Subsidiary
Acquisition Loans pro rata in accordance with the respective
aggregate principal amounts of the Loans of such series.
(ii) From and after the Commitment Termination Date,
each prepayment under this Section 3.04 shall be applied,
first, to the prepayment of Infinity Term Loans, Working
Capital Loans and Infinity Acquisition Loans pro rata in
accordance with the respective aggregate principal amounts
of the Loans of such series, and then, after all Infinity
Term Loans, Working Capital Loans and Infinity Acquisition
Loans have been paid in full, to the prepayment of
Subsidiary Loans pro rata in accordance with the respective
aggregate principal amounts of the Loans of such series (in
each case, the amount of the Loans of each such series so
prepaid to be applied to the remaining installments of such
Loans in the inverse order of maturity). The Company shall
give notice to the Administrative Agent of each prepayment
pursuant to this Section 3.04 hereof in the same manner and
at the same time required for any optional prepayment
pursuant to Section 3.03 hereof. Notwithstanding anything
in this Section 3.04 to the contrary, no prepayment of Loans
pursuant to either paragraph (a) or (b) above shall be
required to be made until the last Quarterly Date of the
then current Fiscal Year of the Company or, if earlier, the
date on which the aggregate of the amounts to be applied to
such prepayment in such Fiscal Year as provided in said
paragraphs (a) and (b) equals or exceeds $250,000, after
which date all such amounts received during such Fiscal Year
shall be applied to such prepayment as therein provided.
54
<PAGE>
Credit Agreement
________________
Section 4. Payments; Pro Rata Treatment; Computations;
___________________________________________
Etc.
____
4.1. Payments.
________
(a) Except to the extent otherwise provided herein or
therein, all payments of principal, interest and other amounts to
be made by the Company under this Agreement and the other Basic
Documents, shall be made in Dollars, in immediately available
funds, to the Administrative Agent at account number NYAO-DI-900-
9-000002 maintained by the Administrative Agent with Chase at the
Principal Office, not later than 11:00 a.m. New York time on the
date on which such payment shall become due (each such payment
made after such time on such due date to be deemed to have been
made on the next succeeding Business Day).
(b) The Administrative Agent or any Bank for whose
account any such payment is to be made, may (but shall not be
obligated to) debit the amount of any such payment which is not
made by such time to any ordinary deposit account of the Company
with it (with notice to the Company).
(c) The Company shall, at the time it makes or causes
to be made any payment under this Agreement, any Subsidiary Loan
Agreement or any Note, as the case may be, notify the
Administrative Agent (which shall so notify the intended
recipient(s) thereof) of the Loans or other amounts payable by
the Company hereunder or by any Subsidiary Borrower under a
Subsidiary Loan Agreement or the Notes of such Subsidiary
Borrower, as the case may be, to which such payment is to be
applied in which case such payment shall be so applied, subject
to Sections 3.03, 3.04 and 4.02 hereof (and in the event that it
fails to so specify, the Administrative Agent may distribute the
amount of such payment to the Banks in such manner as the
Majority Banks may determine to be appropriate, subject to said
Sections 3.03, 3.04 and 4.02).
(d) Each payment received by the Administrative Agent
under this Agreement or any Subsidiary Loan Agreement or any Note
for account of any Bank shall be paid by the Administrative Agent
promptly to such Bank, in immediately available funds, for
account of such Bank's Applicable Lending Office for the Loan or
other obligation in respect of which such payment is made.
(e) All payments by the Company hereunder or by any
Subsidiary Borrower under the Subsidiary Loan Agreement to which
55
<PAGE>
Credit Agreement
________________
such Subsidiary Borrower is a party shall be made without
deduction, set-off or counterclaim.
(f) If the due date of any payment under this
Agreement, any Subsidiary Loan Agreement or any Note would
otherwise fall on a day which is not a Business Day such payment
shall be made on the immediately preceding Business Day and
interest on any principal so paid shall be payable to, but
excluding, the date such payment is made.
4.2. Pro Rata Treatment. Except to the extent
__________________
otherwise provided herein:
(a) except as provided in paragraph (g) below, each
borrowing (including, without limitation, by any Subsidiary
Borrower) under each series of Commitments shall be made
from the Banks holding such series of Commitments, each
payment of commitment fees and facility fees in respect of
each series of Commitments shall be made for account of the
Banks holding such series of Commitments, and each
termination or reduction of the amount of each series of
Commitments shall be applied to such series, pro rata
according to the respective unused amounts of the
Commitments of such series;
(b) the Conversion and Continuation of Loans hereunder
or under any Subsidiary Loan Agreement of a particular type
and series (other than Conversions provided for by Section
5.04 hereof or by Section 5.04 of any Subsidiary Loan
Agreement) shall be made pro rata among the Banks holding
Loans of such type and series according to the respective
amounts of their Loans of such series, and Eurodollar Loans
of a particular type and series having the same Interest
Period shall be allocated pro rata among the Banks according
to the amounts of their respective Loans of such type and
series;
(c) except as provided in paragraph (g) below, each
payment or prepayment of principal of Loans hereunder or
under any Subsidiary Loan Agreement of a particular type and
series shall be made to the Administrative Agent for account
of the Banks holding Loans of such type and series pro rata
in accordance with the respective unpaid principal amounts
of the Loans of such type and series held by such Banks;
(d) each payment of interest on Loans hereunder or
under any Subsidiary Loan Agreement of a particular type and
56
<PAGE>
Credit Agreement
________________
series shall be made to the Administrative Agent for account
of the Banks holding Loans of such type and series pro rata
in accordance with the amounts of interest on Loans of such
type and series then due and payable to such Banks;
(e) the conversion of a portion of the Acquisition
Loans under and as defined in the Existing Credit Agreement
to Acquisition Loans outstanding to Infinity of Boston and
Infinity of California on the Effective Date as provided in
Section 2.01(c) hereof shall be made in a manner such that
after giving effect to such conversion each Revolving Credit
Bank holds Acquisition Loans of the Company, Infinity of
Boston and Infinity of California pro rata (as to principal
amounts and Interest Periods, if any) in accordance with the
amounts of their respective Loans of such type immediately
prior to the Effective Date;
(f) each assignment of Acquisition Loans by the
Company to any Restricted Subsidiary as contemplated by
Section 2.01(d)(ii) hereof, shall be made in a manner such
that after giving effect to such assignment each Revolving
Credit Bank holds Acquisition Loans of the Company and such
Restricted Subsidiary pro rata (as to principal amounts and
Interest Periods, if any) in accordance with the amounts of
their respective Loans of such type; and
(g) from and after the Effective Date and until such
time as the Acquisition Loans held by the Revolving Credit
Banks are held by the Revolving Credit Banks pro rata
according to the respective amounts of their Acquisition
Loan Commitments, each borrowing (including, without
limitation, by any Subsidiary Borrower) under the
Acquisition Loan Commitments shall be made from the
Revolving Credit Banks, and each payment or prepayment of
principal of Acquisition Loans shall be made to the
Revolving Credit Banks, in a manner such that after giving
effect thereto the Acquisition Loans are held by the
Revolving Credit Banks ratably (as to principal amounts and
Interest Periods, if any) in accordance with the amounts of
their respective Acquisition Loan Commitments or as nearly
thereto as possible (provided, that, without in any way
________
limiting the foregoing provisions of this paragraph (g),
all, but not less than all, the Revolving Credit Banks may,
but shall not be obligated to, agree to and thereafter
effect appropriate adjustments among themselves (by
assignment in accordance with Section 11.06(a) hereof) for
the purpose of allocating outstanding Acquisition Loans
57
<PAGE>
Credit Agreement
________________
among the Revolving Credit Banks pro rata in accordance with
the amounts of their respective Acquisition Loan Commitments
as of the date of such adjustment).
4.3. Computations. Interest on Eurodollar Loans
____________
hereunder shall be computed on the basis of a year of 360 days
and actual days elapsed (including the first day but excluding
the last day) occurring in the period for which such interest is
payable and interest on Base Rate Loans hereunder and commitment
fees shall be computed on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed (including the first
day but excluding the last day) occurring in the period for which
such interest or commitment fee is payable. Notwithstanding the
foregoing, for each day that the Base Rate is calculated by
reference to the Federal Funds Rate, interest on Base Rate Loans
hereunder shall be computed on the basis of a year of 360 days
and actual days elapsed.
4.4. Minimum Amounts. Except for mandatory
_______________
prepayments made pursuant to Section 3.04 hereof and Conversions
or prepayments made pursuant to Section 5.04 hereof or Section
5.04 of any Subsidiary Loan Agreement, each borrowing, Conversion
and prepayment of principal of Base Rate Loans shall be in an
amount at least equal to $1,000,000 and in multiples of
$1,000,000 in excess thereof and each borrowing, Conversion and
prepayment of Eurodollar Loans shall be in an amount at least
equal to $5,000,000 and in multiples of $1,000,000 in excess
thereof (borrowings of Loans of different types or series,
Conversions of or into Loans of different types or, in the case
of Eurodollar Loans having different Interest Periods,
prepayments of Loans of different types or series or, in the case
of Eurodollar Loans, having different Interest Periods at the
same time hereunder to be deemed separate borrowings, Conversions
and prepayments for purposes of the foregoing, one for each type
or series or Interest Period).
4.5. Certain Notices. Notices by the Company to the
_______________
Administrative Agent of terminations or reductions of the
Commitments, of borrowings, assignments to Subsidiary Borrowers,
Conversions, Continuations and optional and mandatory prepayments
of Loans, of series of Loans, of types of Loans and of the
duration of Interest Periods shall be irrevocable and shall be
effective only if received by the Administrative Agent not later
than 11:00 a.m. New York time on the number of Business Days
prior to the date of the relevant termination, reduction,
borrowing, Conversion, Continuation or prepayment or the first
day of such Interest Period specified below (provided that,
________
58
<PAGE>
Credit Agreement
________________
without in any way limiting the Company's obligations under
Section 5 hereof, at any time prior to the prepayment date
specified in any notice of prepayment given as permitted by
Section 3.03(a) hereof the Company may revoke any such notice of
prepayment, such notice of revocation to be effective upon
dispatch subject, however, to telephonic confirmation of the
receipt thereof by the Administrative Agent prior to such
prepayment date):
Number of
Business
Notice Days Prior
______ __________
Termination or reduction
of Commitments 1
Borrowing by the Company or
prepayment of, or Conversions
into, Base Rate Loans by the
Company or any Subsidiary
Borrower 1
Borrowing by the Company or
prepayment of, Conversions
into, Continuations as, or
duration of Interest Period
for, Eurodollar Loans by the
Company or any Subsidiary Borrower 3
Borrowing by or assignment to
(subject to satisfaction of the
conditions precedent specified
in Section 6.02 hereof on or prior
to the date of such borrowing) any
Subsidiary Borrower of Base Rate
Loans or Eurodollar Loans 5
Each such notice of termination or reduction shall specify the
amount and the series of the Commitments to be terminated or
reduced. Each such notice of borrowing, Conversion, Continuation
or optional or mandatory prepayment shall specify the series of
Loans to be borrowed, Converted, Continued or prepaid and the
amount (subject to Section 4.04 hereof) and type of each Loan to
be borrowed, Converted, Continued or prepaid and the date of
borrowing, Conversion, Continuation or optional prepayment (which
shall be a Business Day). Each such notice of assignments to
Subsidiary Borrowers shall specify the Restricted Subsidiary to
59
<PAGE>
Credit Agreement
________________
which Infinity Acquisition Loans are to be assigned, the
principal amount of Infinity Acquisition Loans to be assigned and
the date of the effectiveness of such assignment (which shall be
a Business Day). Each such notice of the duration of an Interest
Period shall specify the Loans to which such Interest Period is
to relate. The Administrative Agent shall promptly notify the
relevant Banks of the contents of each such notice. In the event
that the Company fails to select the type of any Loan, or the
duration of any Interest Period for any Eurodollar Loan, within
the time period and otherwise as provided in this Section 4.05,
such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of
the then current Interest Period for such Loan or (if outstanding
as a Base Rate Loan) will remain as, or (if not then outstanding)
will be made as, a Base Rate Loan.
4.6. Non-Receipt of Funds by the Administrative Agent.
________________________________________________
Unless the Administrative Agent shall have been notified by a
Bank or the Company, on its own behalf or on behalf of any
Subsidiary Borrower (the "Payor"), prior to the date on which the
_____
Payor is to make payment to the Administrative Agent of (in the
case of a Bank) the proceeds of a Loan to be made by it hereunder
or (in the case of the Company) a payment to the Administrative
Agent for account of one or more of the Banks hereunder or under
any Subsidiary Loan Agreement (such payment being herein called
the "Required Payment"), which notice shall be effective upon
________________
receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may
assume that the Required Payment has been made and may, in
reliance upon such assumption (but shall not be required to),
make the amount thereof available to the intended recipient(s) on
such date and, if the Payor has not in fact made the Required
Payment to the Administrative Agent, the recipient(s) of such
payment shall, on demand, repay to the Administrative Agent the
amount so made available together with interest thereon in
respect of each day during the period commencing on the date such
amount was so made available by the Administrative Agent until
the date the Administrative Agent recovers such amount at, if
such recipient is a Bank, a rate per annum equal to the Federal
Funds Rate for such day or, if such recipient is the Company, at
a rate per annum equal to the Base Rate then in effect plus the
Applicable Margin for Base Rate Loans if such Required Payment
related to the making of a Base Rate Loan and, if such
recipient(s) shall fail promptly to make such payment, the
Administrative Agent shall be entitled to recover such amount, on
demand, from the Payor, together with interest as aforesaid.
60
<PAGE>
Credit Agreement
________________
Section 5. Yield Protection, Etc.
______________________
5.1. Additional Costs.
________________
(a) The Company shall pay directly to each Bank from
time to time such amounts as such Bank may determine to be
necessary to compensate it for any costs which such Bank
determines are attributable to its making or maintaining of any
Eurodollar Loans or its obligation to make any Eurodollar Loans,
or any reduction in any amount receivable by such Bank in respect
of any of such Loans or such obligation (such increases in costs
and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any Regulatory Change which:
________________
(i) changes the basis of taxation of any amounts
payable to such Bank under this Agreement or its Notes or
any other Basic Document in respect of any of such Loans
(other than taxes imposed on or measured by the overall net
income of such Bank or of its Applicable Lending Office for
any of such Loans by the jurisdiction in which such Bank is
incorporated or has its principal office or such Applicable
Lending Office); or
(ii) imposes or modifies any reserve, special
deposit or similar requirements (other than the Reserve
Requirement utilized in the determination of the Eurodollar
Rate for such Loan) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities
of, such Bank (including any of such Loans or any deposits
referred to in the definition of "Eurodollar Base Rate" in
Section 1.01 hereof), or any commitment of such Bank
(including the Commitments of such Bank hereunder); or
(iii) imposes any other condition affecting this
Agreement or its Notes or any other Basic Document (or any
of such extensions of credit or liabilities) or its
Commitments.
If any Bank requests compensation from the Company under this
Section 5.01(a), the Company may, by notice to such Bank (with a
copy to the Administrative Agent), suspend the obligation of such
Bank to make or Continue Eurodollar Loans, or to Convert Base
Rate Loans into Eurodollar Loans, until the Regulatory Change
giving rise to such request ceases to be in effect (in which case
the provisions of Section 5.04 hereof shall be applicable).
61
<PAGE>
Credit Agreement
________________
(b) Without limiting the effect of the provisions of
paragraph (a) of this Section 5.01, in the event that, by reason
of any Regulatory Change, any Bank either (i) incurs Additional
Costs based on or measured by the excess above a specified level
of the amount of a category of deposits or other liabilities of
such Bank which includes deposits by reference to which the
interest rate on Eurodollar Loans is determined or a category of
extensions of credit or other assets of such Bank which includes
Eurodollar Loans or (ii) becomes subject to restrictions on the
amount of such a category of liabilities or assets which it may
hold, then, if such Bank so elects by notice to the Company (with
a copy to the Administrative Agent), the obligation of such Bank
to make or Continue, or to Convert Base Rate Loans into,
Eurodollar Loans shall be suspended until such Regulatory Change
ceases to be in effect (in which case the provisions of
Section 5.04 hereof shall be applicable).
(c) Without limiting the effect of the foregoing
provisions of this Section 5.01 (but without duplication), the
Company shall pay directly to each Bank from time to time on
request such amounts as such Bank may determine to be necessary
to compensate such Bank (or, without duplication, the bank
holding company of which such Bank is a subsidiary) for any costs
which it determines are attributable to the maintenance by such
Bank (or any Applicable Lending Office or such bank holding
company), pursuant to any law or regulation or any
interpretation, directive or request (whether or not having the
force of law) of any court or governmental or monetary authority
(i) following any Regulatory Change or (ii) implementing any
risk-based capital guideline or requirement (whether or not
having the force of law and whether or not the failure to comply
therewith would be unlawful) heretofore or hereafter issued by
any government or governmental or supervisory authority
implementing at the national level the Basle Accord (including,
without limitation, the Final Risk-Based Capital Guidelines of
the Board of Governors of the Federal Reserve System (12 CFR
Part 208, Appendix A; 12 CFR Part 225, Appendix A) and the Final
Risk-Based Capital Guidelines of the Office of the Comptroller of
the Currency (12 CFR Part 3, Appendix A)), of capital in respect
of its Commitments or Loans (such compensation to include,
without limitation, an amount equal to any reduction of the rate
of return on assets or equity of such Bank (or any Applicable
Lending Office or such bank holding company) to a level below
that which such Bank (or any Applicable Lending Office or such
bank holding company) could have achieved but for such law,
regulation, interpretation, directive or request). For purposes
of this Section 5.01(c), "Basle Accord" shall mean the proposals
____________
62
<PAGE>
Credit Agreement
________________
for risk-based capital framework described by the Basle Committee
on Banking Regulations and Supervisory Practices in its paper
entitled "International Convergence of Capital Measurement and
Capital Standards" dated July 1988, as amended, modified and
supplemented and in effect from time to time or any replacement
thereof.
(d) Each Bank shall notify the Company of any event
occurring after the date of this Agreement that will entitle such
Bank to compensation under paragraph (a) or (c) of this
Section 5.01 as promptly as practicable after it obtains actual
knowledge thereof and determines to request such compensation and
will designate a different Applicable Lending Office for the
Loans of such Bank affected by such event if such designation
will avoid the need for, or reduce the amount of, such
compensation and will not, in the reasonable opinion of such
Bank, be disadvantageous to such Bank, except that such Bank
shall have no obligation to designate an Applicable Lending
Office located in the United States of America, provided that no
________
Bank shall be entitled to compensation under this Section 5.01
for any costs incurred more than six months prior to the date the
respective Bank requests the Company for such compensation. Each
Bank will furnish to the Company a certificate setting forth the
basis and amount of each request by such Bank for compensation
under paragraph (a) or (c) of this Section 5.01. Determinations
and allocations by any Bank for purposes of this Section 5.01 of
the effect of any Regulatory Change pursuant to paragraph (a) or
(b) of this Section 5.01, or of the effect of capital maintained
pursuant to paragraph (c) of this Section 5.01, on its costs or
rate of return of maintaining Loans or its obligation to make
Loans, or on amounts receivable by it in respect of Loans, and of
the amounts required to compensate such Bank under this
Section 5.01, shall be conclusive, provided that such
________
determinations and allocations are made on a reasonable basis.
Notwithstanding anything in this Section 5.01 to the contrary, no
Bank shall be entitled to compensation (i) if any increase in
costs results from any Bank failing to comply with any of the
requirements set forth in Section 5.06(a) or (ii) for any costs
to a Bank that are already taken into account in the
determination of the applicable interest rate.
5.2. Limitation on Eurodollar Loans. Anything herein
______________________________
to the contrary notwithstanding, if, on or prior to the
determination of any Eurodollar Base Rate for any Eurodollar
Loans for any Interest Period:
63
<PAGE>
Credit Agreement
________________
(a) the Administrative Agent determines, which
determination shall be conclusive, that quotations of
interest rates for the relevant deposits referred to in the
definition of "Eurodollar Base Rate" in Section 1.01 hereof
are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of
interest for such Eurodollar Loans; or
(b) if such Loans are Term Loans and/or Revolving
Credit Loans, the Majority Term Loan Banks and/or Majority
Revolving Credit Banks, respectively, determine, which
determination shall be conclusive, and notify the
Administrative Agent that the relevant rates of interest
referred to in the definition of "Eurodollar Base Rate" in
Section 1.01 hereof upon the basis of which the rate of
interest for Eurodollar Loans for such Interest Period is to
be determined are not likely adequately to cover the cost to
such Banks of making or maintaining Eurodollar Loans for
such Interest Period;
then the Administrative Agent shall give the Company and each of
the Banks which are to make or which hold such Loans prompt
notice thereof, and so long as such condition remains in effect,
such Banks shall be under no obligation to make additional
Eurodollar Loans, to Continue Eurodollar Loans or to Convert Base
Rate Loans into Eurodollar Loans and the Company shall, on the
last day(s) of the then current Interest Period(s) for such
Eurodollar Loans, Convert such Loans into Base Rate Loans in
accordance with Section 2.08 hereof.
5.3. Illegality. Notwithstanding any other provision
__________
of this Agreement or any other Basic Document, in the event that
it becomes unlawful for any Bank or its Applicable Lending Office
to honor its obligation to make or maintain Eurodollar Loans,
then such Bank shall promptly notify the Company thereof (with a
copy to the Administrative Agent) and such Bank's obligation to
make or Continue, or to Convert Loans of any other type into,
Eurodollar Loans shall be suspended until such time as such Bank
may again make and maintain Eurodollar Loans (in which case the
provisions of Section 5.04 hereof shall be applicable).
5.4. Treatment of Affected Loans. If the obligation
___________________________
of any Bank to make Eurodollar Loans or Continue, or to Convert
Base Rate Loans into, Eurodollar Loans shall be suspended
pursuant to Section 5.01 or 5.03 hereof, such Bank's Eurodollar
Loans shall be automatically Converted into Base Rate Loans on
the last day(s) of the then current Interest Period(s) for such
64
<PAGE>
Credit Agreement
________________
Eurodollar Loans (or, in the case of a Conversion required by
Section 5.01(b) or 5.03 hereof, on such earlier date as such Bank
may specify to the Company with a copy to the Administrative
Agent) and, unless and until such Bank gives notice as provided
below that the circumstances specified in Section 5.01 or 5.03
hereof which gave rise to such Conversion no longer exist:
(a) to the extent that such Bank's Eurodollar Loans of
any series have been so Converted, all payments and
prepayments of principal which would otherwise be applied to
such Bank's Eurodollar Loans of such series shall be applied
instead to its Base Rate Loans of such series; and
(b) all Loans which would otherwise be made or
Continued by such Bank as Eurodollar Loans shall be made or
Continued instead as Base Rate Loans and all Base Rate Loans
of such Bank which would otherwise be Converted into
Eurodollar Loans shall remain as Base Rate Loans.
If such Bank gives notice to the Company with a copy to the
Administrative Agent that the circumstances specified in
Section 5.01 or 5.03 hereof which gave rise to the Conversion of
such Bank's Eurodollar Loans of any series pursuant to this
Section 5.04 no longer exist (which such Bank agrees to do
promptly upon such circumstances ceasing to exist) at a time when
Eurodollar Loans of such series held by other Banks are
outstanding, such Bank's Base Rate Loans of such series shall be
automatically Converted, on the first day(s) of the next
succeeding Interest Period(s) for such outstanding Eurodollar
Loans, to the extent necessary so that, after giving effect
thereto, all Loans of such series held by such Banks and by such
Bank are held pro rata (as to principal amounts, types and
Interest Periods) in accordance with their respective Loans of
such series.
5.5. Compensation. The Company shall pay to the
____________
Administrative Agent for account of each Bank, upon the request
of such Bank through the Administrative Agent, such amount or
amounts as shall be sufficient (in the reasonable opinion of such
Bank) to compensate it for any loss, cost or expense which such
Bank determines is attributable to:
(a) any payment, prepayment or Conversion of a
Eurodollar Loan held by such Bank for any reason (including,
without limitation, the acceleration of the Loans pursuant
to Section 9 hereof) on a date other than the last day of
the Interest Period for such Loan or any failure by the
65
<PAGE>
Credit Agreement
________________
Company or any Subsidiary Borrower for any reason
(including, without limitation, by reason of a revocation of
a notice of prepayment given as permitted by Section 3.03(a)
hereof) to prepay a Eurodollar Loan on the date specified
for such prepayment in the relevant notice of prepayment
given pursuant to said Section 3.03(a); or
(b) any failure by the Company or any Subsidiary
Borrower for any reason (including, without limitation, the
failure of any of the conditions precedent specified in
Section 6 hereof to be satisfied) to borrow a Eurodollar
Loan from such Bank on the date for such borrowing specified
in the relevant notice of borrowing given pursuant to
Section 2.02 hereof.
Without limiting the effect of the preceding sentence, such
compensation shall include an amount equal to the excess, if any,
of (i) the amount of interest which otherwise would have accrued
on the principal amount so paid, prepaid or Converted or not
borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of
the then current Interest Period for such Loan (or, in the case
of a failure to borrow, the Interest Period for such Loan which
would have commenced on the date specified for such borrowing) at
the applicable rate of interest for such Loan provided for herein
over (ii) the amount of interest which otherwise would have
accrued on such principal amount at a rate per annum equal to the
interest component of the amount such Bank would have bid in the
London interbank market for Dollar deposits of leading banks in
amounts comparable to such principal amount and with maturities
comparable to such period (as reasonably determined by such
Bank). Each Bank will furnish a certificate to the Company
setting forth the basis and amount of each request by such Bank
for compensation under this Section 5.05, such certificate to be
conclusive as to the amount of compensation to which such Bank is
entitled provided the determination of such amount is made on a
reasonable basis.
5.6. U.S. Taxes.
__________
(a) Prior to the Effective Date, and from time to time
thereafter if requested by the Company or the Administrative
Agent or required because, as a result of a change in law or a
change in circumstances or otherwise, a previously delivered form
or statement becomes incomplete or incorrect in any material
respect, each Bank organized under the laws of a jurisdiction
outside the United States shall provide, if applicable, the
66
<PAGE>
Credit Agreement
________________
Administrative Agent and the Company with complete, accurate and
duly executed forms or other statements prescribed by the
Internal Revenue Service of the United States certifying such
Bank's exemption from, or entitlement to a reduced rate of,
United States withholding taxes (including backup withholding
taxes) with respect to its beneficial interest in payments to be
made to such Bank hereunder, under any of the Subsidiary Loan
Agreements and under any of the Notes. If such Bank has
transferred a beneficial interest in any part of any of the Notes
payable to it, it will forward to the Company or the
Administrative Agent any such statements or forms executed by the
Person to which it has transferred such beneficial interest.
(b) The Company and the Administrative Agent shall be
entitled to deduct and withhold any and all present or future
taxes or withholdings, and all liabilities with respect thereto,
from payments hereunder, under any of the Subsidiary Loan
Agreements or under any of the Notes, if and to the extent that
the Company or the Administrative Agent in good faith determines
that such deduction or withholding is required by the law of the
United States, including, without limitation, any applicable
treaty of the United States. In the event the Company or the
Administrative Agent shall so determine that deduction or
withholding of taxes is required, it shall advise the affected
Bank as to the basis of such determination prior to actually
deducting and withholding such taxes. In the event the Company
or the Administrative Agent shall so deduct or withhold taxes
from amounts payable hereunder or under any of the Subsidiary
Loan Agreements or under any of the Notes, it (i) shall pay to or
deposit with the appropriate taxing authority in a timely manner
the full amount of taxes it has deducted or withheld; (ii) shall
provide evidence of payment of such taxes to, or the deposit
thereof with, the appropriate taxing authority and a statement
setting forth the amount of taxes deducted or withheld, the
applicable rate, and any other information or documentation
reasonably requested by the Banks from whom the taxes were
deducted or withheld; and (iii) shall forward to such Banks any
official tax receipts or other documentation with respect to the
payment or deposit of the deducted or withheld taxes as may be
issued from time to time by the appropriate taxing authority.
Unless the Company and the Administrative Agent shall have
received forms or other documents satisfactory to them indicating
that payments hereunder, under any of the Subsidiary Loan
Agreements or under any of the Notes or not subject to United
States withholding tax or are subject to such tax at a rate
reduced by an applicable tax treaty, the Company or the
Administrative Agent may withhold taxes from such payments at the
67
<PAGE>
Credit Agreement
________________
applicable statutory rate in the case of payment to or for any
Bank organized under the laws of a jurisdiction outside the
United States.
(c) Each Bank organized under the laws of the United
States or any state thereof agrees (i) that as between it and the
Company or the Administrative Agent, it shall be the Person to
deduct and withheld taxes, and to the extent required by law it
shall deduct and withhold taxes, on amounts that such Bank may
remit to any other Person(s) by reason of any undisclosed sale of
a participation in this Agreement to such other Person(s)
pursuant to Section 11.06; and (ii) to indemnify the Company and
the Administrative Agent and any officers, directors, agents or
employees of the Company or the Administrative Agent against and
to hold them harmless from any tax, interest, additions to tax,
penalties, reasonable counsel and accountants fees and
disbursements arising from the assertion by any appropriate
taxing authority of any claim against them relating to a failure
to withhold taxes as required by law with respect to amounts
described in clause (i) of this paragraph (c).
(d) Each assignee of a Bank's interest in this
Agreement or any Subsidiary Loan Agreement in conformity with
Section 11.06 shall be bound by this Section 5.06, so that such
assignee will have all of the obligations and provide all of the
forms and statements and all indemnities, representations and
warranties required to be given under this Section 5.06. Unless
the Company shall have consented in writing to such assignment,
no assignee of a Bank's interest in this Agreement or any
Subsidiary Loan Agreement shall have the right to any payment
under this Section 5.06 in excess of the amount that would have
been payable to the assignor Bank.
(e) Notwithstanding the foregoing, in the event that
any withholding taxes shall become payable solely as a result of
any change in any statute, treaty, ruling, determination or
regulation occurring after the Initial Date (as hereinafter
defined) in respect of any sum payable hereunder, under any
Subsidiary Loan Agreement or under any Note to any Bank (or any
participant in a Loan held by a Bank) or the Administrative Agent
(i) the sum payable by the Company shall be increased as may be
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 5.06) such Bank (or any participant in a Loan held by a
Bank) or the Administrative Agent (as the case may be) receives
an amount equal to the sum it would have received had no such
deductions been made, (ii) the Company shall make such deductions
68
<PAGE>
Credit Agreement
________________
and (iii) the Company shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law. For purposes of this Section 5.06, the term
"Initial Date" shall mean (i) in the case of the Administrative
____________
Agent, the date hereof, (ii) in the case of each Bank as of the
date hereof, the date hereof and (iii) in the case of any other
Bank, the date it becomes a Bank hereunder pursuant to Section
11.06. No amount payable hereunder to a holder of a
participation in a Loan shall be greater in amount than the
amount that would have been paid to the holder of the Loan had it
retained the Loan and not sold the participation thereon.
(f) If as a result of withholding taxes becoming
payable in connection with any amount payable to or with respect
to a Bank (i) the sum payable by the Company is increased
pursuant to clause (i) of Section 5.06(e) hereof and (ii) such
Bank utilizes a credit against any tax liability arising
hereunder for which it is liable (other than the income tax
liability directly satisfied by such withholding), then such Bank
shall promptly pay to the Company an amount equal to such amount
as the Bank estimates in a good faith exercise of its judgment
represents the credit so utilized (not to exceed the
corresponding sum payable by the Company pursuant to
Section 5.06(e) hereof), provided that a Bank shall not be
________
obligated to make any payment hereunder to the extent such
payment would result in such Bank's being in a worse after-tax
economic position than if amounts paid to such Bank had not been
subject to withholding taxes. In the event the credit is later
disallowed, deferred or recaptured for any reason, the Company
will pay the Bank such amount as will equal the amount of the
credit so disallowed, deferred or recaptured, provided that the
________
Company shall not be obligated to pay any amount hereunder to a
Bank with respect to any credit that is later disallowed or
recaptured in excess of the amount paid hereunder to the Company
by such Bank in respect of such credit. In any such case, the
applicable Bank shall provide to the Company a statement in
reasonable detail setting forth the determination of such credit
utilized by such Bank.
5.7. Replacement or Prepayment of Certain Banks. The
__________________________________________
Company may, with respect to any Bank that requests compensation
pursuant to Section 5.01 hereof, upon not less than three
Business Days prior notice to such Bank (with a copy to the
Administrative Agent) specifying the date for the consummation of
the assignment contemplated by said clause (i) or the termination
and/or payment(s) contemplated below require that such Bank
assign (in which case such Bank shall assign) as provided in
69
<PAGE>
Credit Agreement
________________
Section 11.06(a) hereof all (but not less than all) of its Loans
and Commitments (if any) to one or more other financial
institutions (which may be "Banks" hereunder) specified by the
Company in such notice willing to accept such assignment for an
amount equal to the sum of the outstanding aggregate principal
amount of such Bank's Loans and unpaid interest thereon (and
unpaid commitment fees owing to such Bank pursuant to Section
2.04 hereof) accrued to the date of the consummation of such
assignment (such assignment to be pursuant to documentation
reasonably acceptable to such Bank), provided that the Company
________
shall pay to such Bank upon the consummation of such assignment
(x) such amounts (if any) as are then owing to such Bank under
Section 5 hereof (and, including without limitation, the amounts
payable under Section 5.05 hereof, if any, that the Company would
be required to pay such Bank if the Loans assigned by it were
being prepaid by the Company on the date of such consummation)
and (y) all other amounts then owing by the Company to or for the
account of such Bank hereunder (other than such principal of its
Loans and such interest and commitment fees). If any Bank that
is a Reference Bank (or whose Applicable Lending Office is a
Reference Bank, as the case may be) shall be replaced pursuant to
this Section 5.07, such Reference Bank shall thereupon cease to
be a Reference Bank and, if as a result of the foregoing, there
shall only be two Reference Banks remaining, then the
Administrative Agent (with the consent of the Company) shall, by
notice to the Company and the Banks, designate another Bank as a
Reference Bank, so that there shall at all times be three
Reference Banks.
Section 6. Conditions Precedent.
____________________
6.1. Effective Date and Conversion of Existing Loans.
_______________________________________________
The effectiveness of this Agreement, the conversion (pursuant to
Sections 2.01(a), 2.01(b) and 2.01(c) hereof) of Existing Loans
to Loans hereunder, under the HBC Term Loan Agreement, the SBC
Term Loan Agreement, the Infinity of Boston Acquisition Loan
Agreement and the Infinity of California Acquisition Loan
Agreement and the obligation of any Revolving Credit Bank to make
its initial Revolving Credit Loan on and after the Effective Date
are subject to (i) the condition precedent that the Effective
Date shall occur on or before June 30, 1994 and (ii) the receipt
by the Administrative Agent of the following, each of which shall
be satisfactory to the Administrative Agent (and, with respect to
the documents identified in paragraph (h) below, the Collateral
Agent) in form and substance:
70
<PAGE>
Credit Agreement
________________
(a) Corporate Documents. Certified copies of the
___________________
charter and by-laws (or equivalent documents) of each
Obligor and of all corporate authority for such Obligor
(including, without limitation, board of director
resolutions and evidence of the incumbency of officers) with
respect to the execution, delivery and performance of each
of the Basic Documents to which such Obligor is a party and
each other document to be delivered by such Obligor from
time to time in connection herewith and the Loans hereunder
and under the Subsidiary Loan Agreements (and each of the
Agents and each Bank may conclusively rely on such certifi-
cate until it receives notice in writing from such Obligor
to the contrary).
(b) Officer's Certificate. A certificate of a Senior
_____________________
Officer of the Company dated the Effective Date to the
effect set forth in Section 6.04(a) hereof.
(c) Opinion of Counsel to the Obligors and FCC Counsel
__________________________________________________
to the Obligors. An opinion of Debevoise & Plimpton,
_______________
counsel to the Obligors, dated the Effective Date,
substantially in the form of Exhibit E-1 hereto and an
opinion of Leventhal, Senter & Lerman, FCC counsel to the
Obligors, dated the Effective Date, substantially in the
form of Exhibit E-2 hereto (and the Company hereby instructs
each such counsel to deliver its respective opinion to the
Banks and the Agents).
(d) Opinion of Counsel to Chase. An opinion of
___________________________
Milbank, Tweed, Hadley & McCloy, special New York counsel to
Chase, dated the Effective Date, substantially in the form
of Exhibit F hereto.
(e) Notes. The Infinity Term Loan Notes, the Working
_____
Capital Loan Notes, the Infinity Acquisition Loan Notes, the
HBC Term Loan Notes, the SBC Term Loan Notes, the Infinity
of Boston Acquisition Loan Notes and the Infinity of
California Acquisition Loan Notes, duly completed, executed
and delivered. Each of the Banks agrees that it will return
to the Company the Infinity Term Loan Notes, the Working
Capital Loan Notes, the Acquisition Loan Notes, the HBC Term
Loan Notes and the SBC Term Loan Notes (in each case, as
defined in the Existing Credit Agreement) issued to it under
the Existing Credit Agreement on or as promptly as practical
after the Effective Date.
71
<PAGE>
Credit Agreement
________________
(f) Certain Subsidiary Loan Agreements. The HBC Term
__________________________________
Loan Agreement, the SBC Term Loan Agreement, the Infinity of
Boston Acquisition Loan Agreement and the Infinity of
California Acquisition Loan Agreement, each duly completed,
executed and delivered by the Subsidiary Borrower party
thereto and the Administrative Agent. In addition, the
Administrative Agent shall have received evidence satis-
factory to it that each of the conditions precedent
specified in Section 6 of each of the HBC Term Loan
Agreement, the SBC Term Loan Agreement, the Infinity of
Boston Acquisition Loan Agreement and the Infinity of
California Acquisition Loan Agreement has been satisfied or
waived with the consent of such of the Banks as are required
for such purpose under this Agreement.
(g) Guarantee Agreement. The Guarantee Agreement,
___________________
duly completed, executed and delivered by each Obligor and
the Administrative Agent.
(h) Security Agreement. The Security Agreement, duly
__________________
completed, executed and delivered by each Obligor and the
Collateral Agent and the certificates identified under the
name of such Obligor in Schedule I thereto, in each case
accompanied by undated stock powers executed in blank. In
addition, each Obligor shall have taken such other action
(including delivering to the Collateral Agent, with copies
to the Administrative Agent for filing, appropriately
completed and duly executed Uniform Commercial Code
financing statements) as the Administrative Agent or
Collateral Agent shall have requested in order to perfect
the security interests created pursuant to the Security
Agreement. In addition, at least ten Business Days prior to
the Effective Date, each Obligor shall have delivered to the
Administrative Agent and the Collateral Agent the results of
a Uniform Commercial Code search request (completed no
earlier than February 1, 1994) in each jurisdiction in which
such Obligor holds any Property that is to be pledged to the
Collateral Agent under the Security Agreement.
(i) Approvals and Consents. Evidence that all
______________________
necessary governmental (including, without limitation, the
FCC) and third party and shareholder consents, licenses,
permits and approvals in connection with the execution,
delivery, performance, validity and enforceability of each
of the Basic Documents and the transactions contemplated
hereby have been obtained and are in full force and effect.
72
<PAGE>
Credit Agreement
________________
(j) Fees and Expenses. Evidence that all amounts
_________________
payable by the Company, HBC, SBC, Infinity of Boston and
Infinity of California, respectively, on or prior to the
Effective Date in connection with this Agreement, the HBC
Term Loan Agreement, the SBC Term Loan Agreement, the
Infinity of Boston Acquisition Loan Agreement and the
Infinity of California Acquisition Loan Agreement, as the
case may be, including without limitation, under Sections
2.04 and 11.03 hereof, Section 10.03 of the HBC Term Loan
Agreement, Section 10.03 of the SBC Term Loan Agreement,
Section 10.03 of the Infinity of Boston Acquisition Loan
Agreement and Section 10.03 of the Infinity of California
Acquisition Loan Agreement have been paid in full (in the
case of amounts payable under said Section 11.03 and said
Sections 10.03, to the extent that invoices therefor have
been delivered to the Company).
(k) Existing Unrestricted Subsidiaries. A Tax
__________________________________
Allocation Agreement, duly completed, executed and delivered
by each Subsidiary of the Company designated as an
Unrestricted Subsidiary as of the Effective Date and such
other evidence (including, without limitation, copies of
agreements of the type referred to in Sections 8.22(a) and
(b) hereof) demonstrating that such Subsidiary meets the
criteria set forth herein for designation as an Unrestricted
Subsidiary.
(l) Other Documents. Such other documents as the
_______________
Administrative Agent or, with respect to clause (h) above,
the Collateral Agent, or special New York counsel to Chase
may reasonably request.
6.2. Subsidiary Acquisition Loans. The obligations of
____________________________
the Revolving Credit Banks holding Acquisition Loan Commitments
to make Subsidiary Acquisition Loans to any Restricted Subsidiary
are subject to (a) the condition precedent that the Effective
Date shall have occurred and (b) the receipt by the
Administrative Agent of (i) the related Subsidiary Loan
Agreement, duly completed, executed and delivered by such
Restricted Subsidiary and the Administrative Agent, (ii) evidence
satisfactory to the Administrative Agent that each of the
conditions precedent specified in Section 6 of such Subsidiary
Loan Agreement has been satisfied or waived with the consent of
such of the Banks as are required for such purpose under this
Agreement and (iii) such other documents as the Administrative
Agent or special New York counsel to Chase may reasonably
request.
73
<PAGE>
Credit Agreement
________________
6.3. Acquisition Loans. The obligations of the
_________________
Revolving Credit Banks holding Acquisition Loan Commitments to
make Acquisition Loans upon the occasion of each borrowing under
the Acquisition Loan Commitments are subject to (a) the condition
precedent that the Effective Date shall have occurred and (b) the
receipt by the Administrative Agent of (i) evidence satisfactory
to the Administrative Agent that the proceeds of such Acquisition
Loans are to be used by the Company or any Subsidiary Borrower in
compliance with all applicable provisions of this Agreement and
the other Basic Documents and (ii) such other documents as the
Administrative Agent or special New York counsel to Chase may
reasonably request.
6.4. Initial and Subsequent Loans. The obligation of
____________________________
any Bank to make any Loan to be made by it to the Company or any
Subsidiary Borrower upon the occasion of each borrowing by such
Person hereunder or under any Subsidiary Loan Agreement
(including the initial borrowing by it) is subject to the further
conditions precedent that:
(a) Both immediately prior to such borrowing and also
after giving effect thereto and to the proposed use of the
proceeds thereof: (i) no Default shall have occurred and be
continuing; and (ii) the representations and warranties made
by the Company in Section 7 hereof, and by each Obligor in
each of the other Basic Documents to which such Obligor is a
party, shall be true in all material respects on and as of
the date of such borrowing with the same force and effect as
if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been
made as of a specific date, as of such specific date) (each
notice of borrowing by the Company hereunder shall
constitute a certification by the Company to the effect set
forth in this clause (a), both as of the date of such notice
and, unless the Company otherwise notifies the
Administrative Agent prior to the date of such borrowing, as
of the date of such borrowing).
(b) The Administrative Agent shall have received a
Borrowing Notice duly completed and executed by a Senior
Officer of the Company in substantially the form of
Exhibit H hereto.
Section 7. Representations and Warranties. The
______________________________
Company represents and warrants to the Banks that:
74
<PAGE>
Credit Agreement
________________
7.1. Corporate Existence. Each of the Company and its
___________________
Restricted Subsidiaries: (a) is a corporation duly organized and
validly existing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power, and
has all material governmental licenses, authorizations, consents
and approvals necessary to own its assets and carry on its
business as now being or as proposed to be conducted; and (c) is
qualified to do business in all jurisdictions in which the nature
of the business conducted by it makes such qualification
necessary and where failure so to qualify would have a Material
Adverse Effect.
7.2. Financial Condition. The consolidated balance
___________________
sheet of the Company and its Restricted Subsidiaries as at
December 31, 1993 and the related consolidated statements of
income, retained earnings and changes in financial position (or
of cash flow, as the case may be) of the Company and its
Restricted Subsidiaries for the fiscal year ended on said date,
with the opinion thereon (in the case of said consolidated
balance sheet and statements) of KPMG Peat Marwick, and the
unaudited consolidated balance sheet of the Company and its
Restricted Subsidiaries as at March 31, 1994 and the related
consolidated statements of income, retained earnings and changes
in financial position (or of cash flow, as the case may be) of
the Company and its Restricted Subsidiaries for the three-month
period ended on such date, heretofore furnished to each of the
Banks, fairly present in all material respects the consolidated
financial condition of the Company and its Restricted
Subsidiaries as at said dates and the consolidated results of
their operations for the fiscal year and three-month period ended
on said dates (subject, in the case of such financial statements
as at March 31, 1994, to normal year-end audit adjustments and
footnote disclosure), all in accordance with generally accepted
accounting principles and practices applied on a consistent
basis. Neither the Company nor any of its Restricted
Subsidiaries had on said dates any material contingent
liabilities, liabilities for taxes, unusual forward or long-term
commitments or unrealized or anticipated losses from any
unfavorable commitments, except as referred to or reflected or
provided for in said balance sheets or the notes thereto as at
said dates. Since March 31, 1994, there has been no material
adverse change in the consolidated financial condition,
operations, business or prospects taken as a whole of the Company
and its Restricted Subsidiaries from that set forth in said
financial statements as at said date.
75
<PAGE>
Credit Agreement
________________
7.3. Litigation. Except as set forth in Schedule V
__________
hereto, there are no legal or arbitral proceedings, or any
proceedings by or before any governmental or regulatory authority
or agency, now pending or (to the knowledge of the Company)
threatened against the Company or any of its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect.
7.4. No Breach. Except as set forth in Schedule VI
_________
hereto, none of the execution and delivery of this Agreement and
the Notes and the other Basic Documents, the consummation of the
transactions herein and therein contemplated and compliance with
the terms and provisions hereof and thereof will conflict with or
result in a breach of, or require any consent under, the charter
or by-laws of any Obligor, or any applicable law or regulation
(including, without limitation, the Communications Act of 1934,
as amended, and the rules and regulations promulgated
thereunder), or any order, writ, injunction or decree of any
court or governmental authority or agency (including, without
limitation, the FCC), or any agreement or instrument to which the
Company or any of its Restricted Subsidiaries is a party or by
which any of them is bound or to which any of them is subject, or
constitute a default under any such agreement or instrument,
except for any such conflict, breach or default that would not
have a Material Adverse Effect or (except for the Liens created
pursuant to the Security Documents) result in the creation or
imposition of any Lien (other than, except with respect to Stock
Collateral, Permitted Liens) upon any Property of the Company or
any of its Restricted Subsidiaries pursuant to the terms of any
such agreement or instrument.
7.5. Action. Each Obligor has all necessary corporate
______
power and authority to execute, deliver and perform its
obligations under each of the Basic Documents to which it is a
party; the execution, delivery and performance by each Obligor of
each of the Basic Documents to which it is or is intended to be a
party have been duly authorized by all necessary corporate action
on its part; and each Basic Document to which any Obligor is a
party has been duly and validly executed and delivered by such
Obligor and constitutes, and each of the other Basic Documents to
which such Obligor is a party when executed and delivered by such
Obligor (in the case of the Notes, for value) will constitute,
its legal, valid and binding obligation, enforceable in
accordance with its terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium
or similar laws of general applicability affecting the
enforcement of creditors' rights and (b) the application of
general principles of equity (regardless of whether such
76
<PAGE>
Credit Agreement
________________
enforceability is considered in a proceeding in equity or at
law).
7.6. Approvals. No authorizations, approvals or
_________
consents of, and no filings or registrations with, any
governmental or regulatory authority or agency (including,
without limitation, the FCC) are necessary for the making or
performance by any Obligor of each Basic Document to which such
Obligor is or is intended to be a party, for the consummation of
the transactions contemplated hereby or thereby, or for the
validity or enforceability thereof, except for (a) filings with
respect to the Security Documents referred to in Sections 6.01(h)
hereof, (b) filings of appropriate counterparts of this Agreement
and related financing documents and other information with the
FCC as required by 73.3613 and 73.3615 of Title 47 of the Code
of Federal Regulations, (c) authorizations, approvals, consents,
filings or registrations (other than any of the foregoing to be
obtained from the FCC) which, if not made, would not have a
Material Adverse Effect and (d) with respect to any Acquisition
to be consummated after the date hereof, authorizations,
approvals, consents, filings or registrations with any
governmental or regulatory authority or agency (including,
without limitation, the FCC), provided that such authorizations,
________
approvals, consents, filings and registrations are obtained prior
to or at the time such Acquisition is consummated.
7.7. Use of Loans. Neither the Company nor any of its
____________
Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying
Margin Stock and no part of the proceeds of any extension of
credit hereunder (or under the Existing Credit Agreement) will be
used (or has been used) to buy or carry any Margin Stock.
7.8. ERISA. The Company and the ERISA Affiliates have
_____
fulfilled their respective obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan and are
in compliance in all material respects with the presently
applicable provisions of ERISA and the Code, and have not
incurred any liability to the PBGC or any Plan or Multiemployer
Plan (other than to make contributions in the ordinary course of
business).
7.9. Taxes. United States Federal income tax returns
_____
of the Company and its Subsidiaries have been closed through the
fiscal year of the Company ended December 31, 1989. The Company
and its Subsidiaries have filed all United States Federal income
77
<PAGE>
Credit Agreement
________________
tax returns and all other material tax returns which are required
to be filed by them and such returns are true and correct in all
material respects and have been prepared in compliance with all
applicable laws and regulations. Except as set forth on Schedule
VII hereto, the Company and its Subsidiaries have paid all taxes
due pursuant to such returns or pursuant to any assessment
received by the Company or any of its Subsidiaries. The charges,
accruals and reserves on the books of the Company and its
Subsidiaries in respect of taxes and other governmental charges
are, in the opinion of the Company, adequate. If the Company is
a member of an affiliated group of corporations filing
consolidated returns for United States Federal income tax
purposes, it is the "common parent" (within the meaning of
Section 1504 of the Code) of such group.
7.10. Investment Company Act. The Company 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.
7.11. Public Utility Holding Company Act. The Company
__________________________________
is not a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as
amended.
7.12. Credit Agreements. Schedule III hereto is a
_________________
complete and correct list, as of the date of this Agreement, of
each credit agreement, loan agreement, indenture, purchase
agreement, guarantee or other arrangement providing for or
otherwise relating to any Indebtedness or any extension of credit
(or commitment for any extension of credit) to, or guarantee by,
the Company or any of its Subsidiaries the aggregate principal or
face amount of which equals or exceeds (or may equal or exceed)
$1,000,000 and the aggregate principal or face amount outstanding
or which may become outstanding under each such arrangement is
correctly described in said Schedule III.
7.13. Environmental Laws. The Company and each of its
__________________
Subsidiaries have obtained all permits, licenses and other
authorizations which are required under all Environmental Laws,
except to the extent failure to have any such permit, license or
authorization would not have a Material Adverse Effect. The
Company and each of its Subsidiaries are in compliance with the
terms and conditions of all such permits, licenses and
authorizations, and are also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions,
78
<PAGE>
Credit Agreement
________________
requirements, obligations, schedules and timetables contained in
any applicable Environmental Law or in any regulation, code,
plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder,
except to the extent failure to comply would not have a Material
Adverse Effect. No notice, notification, demand, request for
information, citation, summons or order has been issued, no
complaint has been filed, no penalty has been assessed and no
investigation or review is pending or threatened in writing by
any governmental or other entity with respect to any alleged
failure by the Company or any of its Subsidiaries to have any
permit, license or authorization required in connection with the
conduct of the business of the Company or any of its Subsidiaries
or with respect to any generation, treatment, storage, recycling,
transportation, discharge or disposal, or any Release of any
Hazardous Materials generated by the Company or any of its
Subsidiaries.
7.14. Subsidiaries, Etc. Set forth in Schedule IV
__________________
hereto is a complete and correct list, as of the date of this
Agreement, of all Subsidiaries of the Company (and the respective
jurisdiction of incorporation of each such Subsidiary and
indicating whether such Subsidiary is a Restricted Subsidiary or
an Unrestricted Subsidiary) and of all Investments held by the
Company or any of its Subsidiaries in any Joint Venture or other
Person. Except (a) as disclosed in Schedule IV hereto, (b) for
Permitted Liens of the type described in paragraph (b), (c) or
(j) of the definition of "Permitted Liens" set forth in Section
1.01 hereof, (c) prior to the Effective Date, for the Liens
created by the Existing Security Agreement and (d) for the Liens
created by the Security Documents, the Company owns, free and
clear of Liens, all outstanding shares of such Subsidiaries (and
each such Subsidiary owns, free and clear of Liens, all
outstanding shares of its Subsidiaries) and all such shares are
validly issued, fully paid and non-assessable and the Company (or
the respective Subsidiary) also owns, free and clear of Liens,
all such Investments.
7.15. Capitalization. As of the date hereof the
______________
authorized capital stock of the Company consists of (a)
75,000,000 shares of Class A common stock, par value $0.002 per
share, of which 28,488,116 shares are duly and validly issued and
outstanding on the date of this Agreement, (b) 17,500,000 shares
of Class B common stock, par value $0.002 per share, of which
3,990,621 shares are duly and validly issued and outstanding on
the date of this Agreement, (c) 30,000,000 shares of Class C
common stock, par value $0.002 per share, of which 496,114 shares
79
<PAGE>
Credit Agreement
________________
are duly and validly issued and outstanding on the date of this
Agreement, and (d) 1,000,000 shares of preferred stock, par value
$0.01 per share, none of which are outstanding on the date of
this Agreement. As of the date hereof, Mel Karmazin owns,
beneficially and of record, 189,692 shares of Class A common
stock of the Company, 2,471,152 shares of Class B common stock of
the Company and no shares of Class C common stock or preferred
stock of the Company. All such outstanding shares are or will be
validly issued, fully paid and nonassessable. All outstanding
shares of such Class B common stock are owned beneficially and of
record by the Management Investor Group, free and clear of
preemptive rights and all Liens whatsoever. Except for the
Karmazin Options, the Employee Options, the Infinity Warrants,
the New Infinity Warrants, the Karmazin Warrants and the rights
granted under the Stockholders' Agreement, there are no Equity
Rights or stockholders' or voting trust agreements or other
voting agreements of any kind to which the Company or any of the
Management Investors is a party relating to the issued or
unissued capital stock or other securities of the Company.
7.16. Assets of the Company. Each of the Company and
_____________________
its Restricted Subsidiaries has good and marketable title to, or
a valid leasehold interest in, all of its Properties, free and
clear of all Liens (except Liens permitted under Section 8.06
hereof).
7.17. Agreements. None of the Company or any of its
__________
Subsidiaries is in default under any agreement, instrument or
other document to which it is a party or by which it or its
Property is bound in any manner that could reasonably be expected
to have a Material Adverse Effect.
7.18. Solvency.
________
(a) The fair saleable value of the assets of the
Company exceeds and will, immediately following the making of
each Loan, exceed the amount that will be required to be paid on
or in respect of the existing debts and other liabilities
(including contingent liabilities) of the Company, as they
mature.
(b) The Company does not and will not have,
immediately following the making of each Loan, unreasonably small
capital to carry out its business as conducted or as proposed to
be conducted.
80
<PAGE>
Credit Agreement
________________
(c) The Company does not intend to, and does not
believe that it will, incur debts beyond its ability to pay such
debts as they mature.
7.19. Security Agreement. The Security Agreement
__________________
creates, as security for the obligations purported to be secured
thereby, a valid and enforceable and, upon the filing of the
financing statements and the taking of the other steps referred
to in the last sentence of this Section 7.19, perfected interest
in and Lien on all of the Properties covered thereby in favor of
the Collateral Agent, superior to and prior to the right of all
third Persons and subject to no other Liens (except Liens
permitted under Section 8.06 hereof). The respective pledgor or
assignor is, and will be, the sole and beneficial owner (or, in
the case of any leasehold interests, the lessee) and has, and
will have, good and marketable title to all such owned Properties
and a valid leasehold interest in all such leased Properties, in
each case free and clear of all Liens (except Liens permitted
under Section 8.06 hereof). No filings or recordings are
required in order to perfect the security interests created
under, and/or the Liens granted by, the Security Agreement except
for filings and other steps to be taken with respect to the Liens
created by the Security Documents as contemplated thereby.
7.20. Senior Indebtedness. The Loans to the Company
___________________
outstanding on the Effective Date are, and all other Loans to the
Company, when made, will, and all of the Company's Guaranteed
Obligations under and as defined in the Guarantee Agreement,
constitute "Senior Indebtedness" and "Significant Senior
Indebtedness" under and as defined in the Subordinated Indenture.
Section 8. Covenants of the Company. The Company
________________________
covenants and agrees with the Banks and the Agents that, so long
as any Commitment or Loan is outstanding and until payment in
full of all amounts payable by the Company hereunder and by the
Company and the other Obligors under each of the other Basic
Documents to which each is a party:
8.1. Financial Statements. The Company will deliver
____________________
to each of the Banks:
(a) as soon as available and in any event within 45
days after the end of each quarterly fiscal period of each
Fiscal Year of the Company, consolidated statements of
income, retained earnings and cash flow of the Company and
its Subsidiaries for such period and for the period from the
81
<PAGE>
Credit Agreement
________________
beginning of the respective Fiscal Year to the end of such
period, and the related consolidated balance sheet as at the
end of such period, setting forth in each case in
comparative form the corresponding consolidated figures for
the corresponding period in the preceding Fiscal Year,
accompanied by a certificate of a senior financial officer
of the Company, which certificate shall state that said
financial statements fairly present in all material respects
the consolidated financial condition and results of
operations of the Company and its Subsidiaries in accordance
with generally accepted accounting principles, consistently
applied, as at the end of, and for, such period (subject to
normal year-end audit adjustments and the absence of
footnote disclosure);
(b) as soon as available and in any event within 90
days after the end of each Fiscal Year of the Company,
consolidated statements of income, retained earnings and
cash flow of the Company and its Subsidiaries for such year
and the related consolidated balance sheet as at the end of
such year, setting forth in each case in comparative form
the corresponding consolidated figures for the preceding
Fiscal Year, and accompanied by an opinion thereon of
independent certified public accountants of recognized
national standing, which opinion shall state that said
consolidated financial statements fairly present in all
material respects the consolidated financial condition and
results of operations of the Company and its Subsidiaries as
at the end of, and for, such Fiscal Year in accordance with
generally accepted accounting principles, and a certificate
of such accountants stating that, in making the examination
necessary for their opinion, they obtained no knowledge,
except as specifically stated, of any Default continuing as
of the date of such certificate;
(c) as soon as available and in any event within 45
days after the end of each quarterly fiscal period of each
Fiscal Year of the Company, consolidated statements of
income, retained earnings and cash flow of the Company and
its Restricted Subsidiaries for such period and for the
period from the beginning of the respective Fiscal Year to
the end of such period, and the related consolidated balance
sheet as at the end of such period, setting forth in each
case in comparative form the corresponding consolidated
figures for the corresponding period in the preceding Fiscal
Year, accompanied by a certificate of a senior financial
officer of the Company, which certificate shall state that
82
<PAGE>
Credit Agreement
________________
said financial statements fairly present in all material
respects the consolidated financial condition and results of
operations of the Company and its Restricted Subsidiaries in
accordance with generally accepted accounting principles
consistently applied, as at the end of, and for, such period
(subject to normal year-end audit adjustments and the
absence of footnote disclosure);
(d) as soon as available and in any event within 90
days after the end of each Fiscal Year of the Company,
consolidated statements of income, retained earnings and
cash flow of the Company and its Restricted Subsidiaries for
such year and the related consolidated balance sheet as at
the end of such year, setting forth in each case in
comparative form the corresponding consolidated figures for
the preceding Fiscal Year, and accompanied by an opinion
thereon of independent certified public accountants of
recognized national standing, which opinion shall state that
said consolidated financial statements fairly present in all
material respects the consolidated financial condition and
results of operations of the Company and its Restricted
Subsidiaries as at the end of, and for, such Fiscal Year in
accordance with generally accepted accounting principles,
and a certificate of such accountants stating that, in
making the examination necessary for their opinion, they
obtained no knowledge, except as specifically stated, of any
Default continuing as of the date of such certificate;
(e) promptly upon their becoming available, copies of
all registration statements and regular periodic reports, if
any, which the Company shall have filed with the Securities
and Exchange Commission (or any governmental agency
substituted therefor) or any national securities exchange;
(f) promptly upon the mailing thereof to the
shareholders of the Company generally, copies of all
financial statements, reports and proxy statements so
mailed;
(g) as soon as possible, and in any event within ten
days after the Company knows or has reason to believe that
any of the events or conditions specified below with respect
to any Plan or Multiemployer Plan have occurred or exist, a
statement signed by a senior financial officer of the
Company setting forth details respecting such event or
condition and the action, if any, which the Company or its
ERISA Affiliate proposes to take with respect thereto (and a
83
<PAGE>
Credit Agreement
________________
copy of any report or notice required to be filed with or
given to PBGC by the Company or an ERISA Affiliate with
respect to such event or condition):
(i) any reportable event, as defined in
Section 4043(b) of ERISA and the regulations issued
thereunder, with respect to a Plan, as to which PBGC
has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30
days of the occurrence of such event (provided that a
failure to meet the minimum funding standard of
Section 412 of the Code or Section 302 of ERISA shall
be a reportable event regardless of the issuance of any
waivers in accordance with Section 412(d) of the Code);
(ii) the filing under Section 4041 of ERISA of a
notice of intent to terminate any Plan or the
termination of any Plan;
(iii) the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or
the receipt by the Company or any ERISA Affiliate of a
notice from a Multiemployer Plan that such action has
been taken by PBGC with respect to such Multiemployer
Plan;
(iv) the complete or partial withdrawal by the
Company or any ERISA Affiliate under Section 4201
or 4204 of ERISA from a Multiemployer Plan, or the
receipt by the Company or any ERISA Affiliate of notice
from a Multiemployer Plan that it is in reorganization
or insolvency pursuant to Section 4241 or 4245 of ERISA
or that it intends to terminate or has terminated under
Section 4041A of ERISA; and
(v) the institution of a proceeding by a
fiduciary of any Multiemployer Plan against the Company
or any ERISA Affiliate to enforce Section 515 of ERISA,
which proceeding is not dismissed within 30 days;
(h) not less than ten Business Days prior to the
occurrence of any transaction or event that would give rise
to an obligation to make a prepayment of Loans pursuant to
Section 3.04(a), (b) or (d) hereof, notice thereof
describing such transaction or event and the expected
84
<PAGE>
Credit Agreement
________________
proceeds to be received therefrom, in detail satisfactory to
the Administrative Agent;
(i) not later than the end of March of each year, a
budget for the Company and its Restricted Subsidiaries for
the current Fiscal Year in detail reasonably satisfactory to
the Majority Banks, and thereafter from time to time any
modification to such budget as soon as available;
(j) promptly after the Company knows that any Default
has occurred, notice of such Default, describing the same in
reasonable detail and describing the steps being taken to
remedy the same;
(k) immediately upon becoming aware that the holder of
any note or of any evidence of Indebtedness of the Company
or any of its Subsidiaries has given notice or taken any
other action with respect to a claimed default or event of
default, a notice specifying the notice given or action
taken by such holder and the nature of the claimed default
or event of default and the steps being taken to remedy the
same;
(l) promptly upon receipt by the Company, a copy of
each report sent by the Company's independent certified
public accountants which deliver the opinion on the
Company's financial statements pursuant to clause (b) above
in connection with any annual, interim or special audit made
by them of the books of the Company or any of its
Subsidiaries, and promptly upon completion of any response
report, a copy of such response report;
(m) as soon as practicable, and in any event within
ten days after the issuance, filing or receipt thereof,
(i) a copy of any order or notice of the FCC or a court of
competent jurisdiction which designates any FCC License of
the Company or any of its Subsidiaries, or any application
therefor, for a hearing or which refuses renewal or
extension of, or revokes or suspends the authority of the
Company or such Subsidiary to operate a Station, (ii) a copy
of any competing application filed with respect to any FCC
License, or application therefor, of the Company or any of
its Subsidiaries, or any citation, notice of violation or
order to show cause issued by the FCC or any material
complaint filed by or with the FCC, to the extent the same
shall have been made available or provided to the Company or
any of its Subsidiaries, and (iii) a copy of any notice of
85
<PAGE>
Credit Agreement
________________
application by the Company or any of its Subsidiaries
requesting authority to cease broadcasting on any broadcast
Station for any period in excess of ten days;
(n) as soon as possible and in any event within ten
days after the Company has received any written notice or
other written communication from any governmental authority
or other Person of any Environmental Claim or to the effect
that the Company or any of its Subsidiaries is not in
compliance with the Environmental Laws or the permits,
licenses or authorizations referred to in Section 7.13
hereof, a notice of such circumstance describing the same in
reasonable detail;
(o) at the time the Company furnishes each set of
financial statements pursuant to clause (a), (b), (c) or (d)
above, summaries of the operating revenues, operating
expenses and broadcast cash flow for each Station owned by
each Restricted Subsidiary;
(p) as soon as practicable after the Effective Date,
and in any event within 75 days after the Effective Date,
the results of a Uniform Commercial Code search request
(completed no earlier than 30 days after the Effective Date)
in each jurisdiction in which any Obligor holds any Property
pledged to the Collateral Agent under the Security
Agreement; and
(q) promptly, from time to time, such other
information regarding (i) the business, affairs, operations
or conditions (financial or otherwise) of the Company or any
of its Subsidiaries, (ii) compliance by the Company with its
obligations contained herein and (iii) the transactions
contemplated hereby, in each case as any Bank or the
Administrative Agent may reasonably request.
The Company will furnish to each Bank, at the time it furnishes
each set of financial statements pursuant to paragraph (a), (b),
(c) or (d) above, a certificate of a senior financial officer of
the Company (i) to the effect that no Default has occurred and is
continuing (or, if any Default has occurred and is continuing,
describing the same in reasonable detail and describing the
action that the Company has taken and proposes to take with
respect thereto) and (ii) setting forth in reasonable detail the
computations or other information necessary to determine whether
the Company is in compliance with Sections 8.05, 8.06, 8.07,
8.08, 8.10, 8.11 and 8.12 hereof.
86
<PAGE>
Credit Agreement
________________
8.2. Litigation. The Company will promptly give to
__________
each Bank notice of all legal or arbitral proceedings, and of all
proceedings by or before any governmental or regulatory authority
or agency (including, without limitation, the FCC), and any
material development in respect of such legal or other
proceedings, affecting the Company or any of its Subsidiaries,
except proceedings which, if adversely determined, would not have
a Material Adverse Effect.
8.3. Existence, Etc. The Company will, and will cause
_______________
each of its Restricted Subsidiaries to: (a) preserve and
maintain its legal existence and all of its material rights,
privileges and franchises (provided that nothing in this
Section 8.03 shall prohibit any transaction expressly permitted
under Section 8.12 hereof); (b) comply with the requirements of
all applicable laws, rules, regulations and orders of
governmental or regulatory authorities (including, without
limitation, the FCC) if failure to comply with such requirements
would have a Material Adverse Effect; (c) pay and discharge all
taxes, assessments and governmental charges or levies imposed on
it or on its income or profits or on any of its Property prior to
the date on which penalties attach thereto, except for any such
tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against
which adequate reserves (determined in accordance with GAAP) are
being maintained; (d) maintain all of its Properties used or
useful in its business in good working order and condition,
ordinary wear and tear excepted; and (e) permit representatives
of any Bank or the Administrative Agent, during normal business
hours, to examine, copy and make extracts from its books and
records, to inspect its Properties, and to discuss its business
and affairs with its officers, all to the extent reasonably
requested by such Bank or the Administrative Agent (as the case
may be).
8.4. Insurance. The Company will, and will cause each
_________
of its Subsidiaries to, keep insured by financially sound and
reputable insurers all Property of a character usually insured by
corporations engaged in the same or similar business similarly
situated against loss or damage of the kinds and in the amounts
customarily insured against by such corporations and carry such
other insurance as is usually carried by such corporations.
8.5. Capital Expenditures. The Company will not, and
____________________
will not permit any of its Restricted Subsidiaries to, at any
time during any Fiscal Year, make any Capital Expenditure unless,
after giving effect to such Capital Expenditure, the aggregate
87
<PAGE>
Credit Agreement
________________
amount of all Capital Expenditures of the Company and its
Restricted Subsidiaries made during such Fiscal Year does not
exceed $3,000,000; provided that if the aggregate amount of all
________
Capital Expenditures of the Company and its Restricted
Subsidiaries made during such Fiscal Year is less than
$3,000,000, the excess of (a) $3,000,000 over (b) the actual
____
amount of Capital Expenditures made in such Fiscal Year may be
expended in the next succeeding Fiscal Year only.
8.6. Liens. The Company will not, and will not permit
_____
any of its Restricted Subsidiaries to, create, incur or suffer to
exist (a) any Lien on or in respect of any of the Stock
Collateral except (i) Liens created pursuant to the Security
Documents, (ii) Permitted Liens of the type listed in paragraph
(b), (c) or (j) of the definition of "Permitted Liens" set forth
in Section 1.01 hereof and (iii) prior to the Effective Date,
Liens created pursuant to the Existing Security Agreement or (b)
any Lien on or in respect of any of its other Properties now
owned or hereafter acquired, securing Indebtedness or other
obligations, except (i) Liens created pursuant to the Security
Documents, (ii) Permitted Liens, (iii) prior to the Effective
Date, Liens created pursuant to the Existing Security Agreement
and (iv) pledges of capital stock of Unrestricted Subsidiaries
securing obligations of Unrestricted Subsidiaries.
8.7. Indebtedness. The Company will not, and will not
____________
permit any of its Restricted Subsidiaries to, create, assume,
incur or suffer to exist any Indebtedness except:
(a) Indebtedness of the Company or any of its
Restricted Subsidiaries under this Agreement, the Subsidiary
Loan Agreements, the Notes, the Guarantee Agreement or any
of the other Security Documents;
(b) Subordinated Debt; and
(c) other Indebtedness not exceeding an aggregate
principal amount of $25,000,000 at any one time outstanding,
provided that (i) the aggregate principal amount of such
________
other Indebtedness created, assumed, incurred or suffered to
exist by the Restricted Subsidiaries shall not exceed
$5,000,000, (ii) the aggregate principal amount of such
other Indebtedness that is secured shall not exceed
$5,000,000 and (iii) no Restricted Subsidiary may Guarantee
any such other Indebtedness of any other Person or create,
assume, incur or suffer to exist a Lien on any of its
88
<PAGE>
Credit Agreement
________________
Property in respect of any such other Indebtedness of any
other Person.
8.8. Investments and Joint Ventures. The Company (x)
______________________________
will not permit any Restricted Subsidiary to make, or permit to
remain outstanding, any Investment in any Unrestricted
Subsidiary, (y) will not permit any Unrestricted Subsidiary to
make, or permit to remain outstanding, any Investment in the
Company or any Restricted Subsidiary and (z) will not, and will
not permit any Restricted Subsidiary to, make, or permit to
remain outstanding, any other Investment in any Person or enter
into any Joint Venture, except:
(a) Investments of the Company or any Restricted
Subsidiary in direct obligations of the United States of
America, or any agency thereof, or obligations guaranteed as
to principal and interest by the United States of America,
or any agency thereof, in each case maturing no more than 90
days from the date of acquisition thereof;
(b) the Company or any Restricted Subsidiary may
acquire and hold certificates of deposit and other time
deposits of, and bankers' acceptances (provided that such
________
time deposit or bankers' acceptance shall mature within one
year after the date so acquired), and other bank accounts
with, any Bank or any other bank having capital and surplus
of at least $500,000,000;
(c) the Company or any Restricted Subsidiary may
acquire and hold commercial paper (i) issued by any bank
holding company controlling any Bank or (ii) rated A-2 or
better by Standard & Poor's Corporation or P-2 or better by
Moody's Investors Service, Inc.;
(d) existing Investments of the Company or any
Restricted Subsidiary in their respective existing
Subsidiaries and additional Investments by the Company or
any Restricted Subsidiary in the form of loans and advances
to their respective Restricted Subsidiaries in the ordinary
course of business, provided that such loans and advances
________
are evidenced by promissory notes and such promissory notes
are delivered to the Collateral Agent under the Security
Agreement as collateral security for the Secured Obligations
(as defined in the Security Agreement) promptly upon the
making of the related loan or advance, such promissory notes
to constitute Pledged Debt under and as defined in the
Security Agreement;
89
<PAGE>
Credit Agreement
________________
(e) existing Investments and Joint Ventures of the
Company and its Restricted Subsidiaries listed on Schedule
IV hereto;
(f) Investments in connection with Acquisitions
permitted by Sections 8.12(d) and 8.12(e) hereof;
(g) loans or advances to officers and employees by the
Company or any of its Restricted Subsidiary for travel,
business or relocation expenses in the ordinary course of
business;
(h) Investments by the Company in Unrestricted
Subsidiaries consisting of capital stock of the Company or
cash (whether by way of investments in capital stock of, or
loans or advances to, any Unrestricted Subsidiary), provided
________
that (i) no such Investment shall be made if a Default has
occurred and is continuing or would occur after giving
effect to such Investment, (ii) no such Investment
consisting of cash shall be made if, after giving effect
thereto, the sum of (x) the Remaining Net Equity Issuance
Proceeds Amount minus (y) $20,000,000 would be less than
_____
zero and (iii) any such cash Investment made by way of a
loan or advance is evidenced by one or more promissory notes
and such promissory notes are delivered to the Collateral
Agent under the Security Agreement as collateral security
for the Secured Obligations (as defined in the Security
Agreement) promptly upon the making of the related loan or
advance, such promissory notes to constitute Pledged Debt
under and as defined in the Security Agreement;
(i) Investments in money market funds substantially
all of whose assets consist of Investments permitted by
clauses (a), (b) and/or (c) of this Section 8.08; and
(j) Investments in Restricted Subsidiaries to the
extent necessary to prepay Loans as required by Section 3.04
hereof.
8.9. Restricted Payments. The Company will not, and
___________________
will not permit any of its Subsidiaries to, make any Restricted
Payment, except for:
(a) subject to the subordination provisions
applicable thereto, payments by the Company of principal of
and interest on Subordinated Debt (but only in the
90
<PAGE>
Credit Agreement
________________
amounts and at the times required to be made by
the terms thereof);
(b) dividends on common stock of the Company paid in
shares of such stock; and
(c) other Restricted Payments made by the Company in
cash, provided that (i) no Default has occurred and is
________
continuing or would occur after giving effect to such
Restricted Payment, (ii) after giving effect thereto the
Remaining Net Equity Issuance Proceeds Amount would be
greater than or equal to zero, (iii) in the case of any
Restricted Payment of the type referred to in clause (c) of
the definition of "Restricted Payment" set forth in Section
1.01 hereof, such Restricted Payment would not otherwise be
prohibited by the subordination provisions applicable to the
Indebtedness in respect of which such Restricted Payment is
to be made and (iv) in the case of any Restricted Payment of
the type referred to in clause (a) or (b) of the definition
of "Restricted Payment" set forth in Section 1.01 hereof
made on any date (each, a "Calculation Date"), after giving
________________
effect to such Restricted Payment and the consummation of
each proposed Acquisition (and related borrowings) with
respect to which the Company and/or any of its Restricted
Subsidiaries has executed and delivered an Acquisition
Agreement on or prior to such Calculation Date, (x) the
Senior Debt Ratio at such Calculation Date (if occurring
during any period specified below) would not exceed the
ratio set forth opposite such period:
Period (both dates inclusive) Ratio
_____________________________ _____
Effective Date - 06/30/95 3.50:1
Thereafter 3.25:1
and (y) the Total Debt Ratio at such Calculation Date (if
occurring during any period specified below) would not
exceed the ratio set forth opposite such period:
Period (both dates inclusive) Ratio
_____________________________ _____
Effective Date - 09/30/94 5.50:1
10/01/94 - 03/31/95 5.25:1
04/01/95 - 09/30/95 5.00:1
10/01/95 - 09/30/96 4.50:1
Thereafter 4.25:1
91
<PAGE>
Credit Agreement
________________
At the time the Company makes any Restricted Payment as
permitted by this Section 8.09(c), the Company shall deliver
a certificate to the Administrative Agent, in form and
detail satisfactory to the Administrative Agent, certifying
as to compliance with this Section 8.09(c) and containing
calculations (in detail reasonably satisfactory to the
Administrative Agent) demonstrating compliance with the
provisions of clauses (ii) and (iv) thereof.
8.10. Debt Ratios.
___________
(a) Senior Debt Ratio. The Company will not permit
_________________
the Senior Debt Ratio, at the Effective Date and at any
Quarterly Date occurring during any period specified below,
to exceed the ratio set forth opposite such period:
Period (both dates inclusive) Ratio
_____________________________ _____
Effective Date - 06/30/95 3.75:1
Thereafter 3.50:1
(b) Total Debt Ratio. The Company will not permit the
________________
Total Debt Ratio, at the Effective Date and at any Quarterly
Date occurring during any period specified below, to exceed
the ratio set forth opposite such period:
Period (both dates inclusive) Ratio
_____________________________ _____
Effective Date - 09/30/94 5.75:1
10/01/94 - 03/31/95 5.50:1
04/01/95 - 09/30/95 5.25:1
10/01/95 - 09/30/96 4.75:1
Thereafter 4.50:1
(c) Group Debt Ratio. The Company will not permit the
________________
Group Debt Ratio, at the Effective Date and at any Quarterly
Date, to exceed 7:1.
8.11. Interest Coverage Ratio; Total Pro Forma Debt
_____________________________________________
Service Coverage Ratio.
______________________
(a) Total Interest Coverage Ratio. The Company will
_____________________________
not permit the Total Interest Coverage Ratio, at the
Effective Date and at any Quarterly Date occurring during
any period specified below, to be less than the ratio set
forth opposite such period:
92
<PAGE>
Credit Agreement
________________
Period (both dates inclusive) Ratio
_____________________________ _____
Effective Date - 09/30/94 1.75:1
Thereafter 2.00:1
(b) Total Pro Forma Debt Service Coverage Ratio. The
___________________________________________
Company will not permit the Total Pro Forma Debt Service
Coverage Ratio, at the Effective Date and at any Quarterly
Date, to be less than 1.05:1.
8.12. Prohibition of Fundamental Changes.
__________________________________
(a) The Company will not, and will not permit any of
its Restricted Subsidiaries to, enter into any transaction of
merger or consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution).
(b) The Company will not, and will not permit any of
its Restricted Subsidiaries to, Acquire any business or Property
from, or capital stock of, or be a party to any Acquisition of,
any Person except for (i) purchases of inventory and other
Property to be sold or used in the ordinary course of business,
(ii) Investments permitted under Section 8.08 hereof,
(iii) Capital Expenditures permitted under Section 8.05 hereof.
(c) The Company will not, and will not permit any of
its Restricted Subsidiaries to, Dispose of, in one transaction or
a series of transactions, all or a substantial part of its
business or Property, whether now owned or hereafter acquired
(including, without limitation, receivables and leasehold
interests).
(d) Notwithstanding any other provisions of this
Section 8.12, any of the Restricted Subsidiaries may effect
Acquisitions of one or more Stations without the consent of any
of the Banks if after giving effect to such Acquisition, the
Remaining Net Equity Issuance Proceeds Amount would equal or
exceed zero, provided that with respect to each such Acquisition:
________
(i) the Administrative Agent shall have received
evidence satisfactory to it that (x) Station Operating Cash
Flow of the Station or group of Stations proposed to be
Acquired for the period of four fiscal quarters of such
Station or group of Stations ending on, or most recently
ended prior to, the date of such Acquisition is greater than
zero and (y) the purchase price of such Acquisition (exclu-
sive of any portion of such purchase price properly
93
<PAGE>
Credit Agreement
________________
attributable to the purchase of the net working capital of
such Station or group of Stations) does not exceed an amount
equal to 11 times such Station Operating Cash Flow for such
period;
(ii) the Administrative Agent shall have received (x) a
certificate of a Senior Officer of the Company setting forth
in reasonable detail the computations necessary to
demonstrate that both immediately prior to such Acquisition
and any borrowing of Loans in connection therewith and after
giving effect to such Acquisition and the concurrent use of
the proceeds of any such Loans to finance such Acquisition,
the Company will be in compliance with Sections 8.10 and
8.11, (y) evidence satisfactory to the Administrative Agent
that, after giving effect to such Acquisition, the Company
will be in compliance with Sections 8.19 and 8.20 hereof and
(z) such other documents as the Administrative Agent or
special New York counsel to Chase may reasonably request;
(iii) no Default has occurred and is continuing or would
occur after giving effect to such Acquisition; and
(iv) the Administrative Agent shall have received
evidence satisfactory to it that the FCC has consented to
such Acquisition and such consent has become a FCC Final
Order and that each other authorization, approval, consent
of, and filing or registration with, any governmental or
regulatory authority or agency (other than the FCC) for the
consummation of such Acquisition or any other transactions
contemplated in connection therewith, or for the validity or
enforceability of any documentation related thereto, has
been obtained, is final and is in full force and effect, has
not been modified in any way and is not subject to any
pending or, to the best knowledge of the Company, threatened
appeal or attack by way of direct proceedings or otherwise.
(e) Notwithstanding the foregoing provisions of this
Section 8.12 and without limiting any of the provisions of
Section 8.12(d) hereof, any of the Restricted Subsidiaries may
effect (I) the Acquisition of Stations WPGC-AM/FM in Washington,
D.C., (II) the Acquisition of Station WXYT-AM in Detroit,
Michigan and (III) other Acquisitions of one or more Stations
that have been consented to by the Majority Banks, such consent
not to be unreasonably withheld, provided that with respect to
________
each such Acquisition:
94
<PAGE>
Credit Agreement
________________
(i) the Company shall have delivered to the Banks the
Acquisition Agreement relating to such Acquisition together
with any other material ancillary documents to be executed
or delivered in connection therewith;
(ii) the Administrative Agent shall have received (x) a
certificate of a Senior Officer of the Company setting forth
in reasonable detail the computations necessary to
demonstrate that both immediately prior to such Acquisition
and any borrowing of Loans in connection therewith and after
giving effect to such Acquisition and the concurrent use of
the proceeds of any such Loans to finance such Acquisition,
the Company will be in compliance with Sections 8.10 and
8.11 hereof, (y) evidence satisfactory to the Administrative
Agent that, after giving effect to such Acquisition, the
Company will be in compliance with Sections 8.19 and 8.20
hereof and (z) such other documents as the Administrative
Agent or special New York counsel to Chase may reasonably
request;
(iii) no Default has occurred and is continuing or would
occur after giving effect to such Acquisition; and
(iv) the Administrative Agent shall have received
evidence satisfactory to it that the FCC has consented to
such Acquisition and, other than with respect to the
Acquisition of Stations WPGC-AM/FM in Washington, D.C. and
the Acquisition of Station WXYT-AM in Detroit, Michigan,
such consent has become a FCC Final Order and that each
other authorization, approval, consent of, and filing or
registration with, any governmental or regulatory authority
or agency (other than the FCC) for the consummation of such
Acquisition or any other transactions contemplated in
connection therewith, or for the validity or enforceability
of any documentation related thereto, has been obtained, is
final and is in full force and effect, has not been modified
in any way and is not subject to any pending or, to the best
knowledge of the Company, threatened appeal or attack by way
of direct proceedings or otherwise.
8.13. Interest Rate Protection Agreements. The
___________________________________
Company will not, and will not permit any of its Restricted
Subsidiaries to, enter into or otherwise become obligated with
respect to any Interest Rate Protection Agreement except that:
(a) the Company will maintain in full force and effect
each of the Interest Rate Protection Agreements entered into
95
<PAGE>
Credit Agreement
________________
by it prior to the date hereof to the extent and as required
by Section 8.13 of the Existing Credit Agreement;
(b) the Company will within 90 days after the
Effective Date and at all times thereafter maintain in full
force and effect one or more additional Interest Rate
Protection Agreements with one or more of the Banks (and/or
with other counterparties reasonably satisfactory to the
Majority Banks) and pursuant to documentation and on terms
reasonably satisfactory to the Majority Banks, which, taken
together with the Interest Rate Protection Agreements
referred to in paragraph (a) above as in effect from time to
time, effectively enables the Company, as at any date, to
protect itself and the Subsidiary Borrowers against
fluctuations in the rates of interest on the Loans as to a
notional principal amount at least equal to 50% of the Loans
then outstanding for a period of at least two years from
such date; provided that, in the event the Company is
________
required by this paragraph (b) to enter into additional
Interest Rate Protection Agreements as a result of an
increase after the Effective Date in the outstanding
aggregate principal amount of the Loans, the Company shall
not be required to do so until the date 90 days after the
date of such increase; and
(c) the Company may, but shall not be obligated to,
enter into one or more other Interest Rate Protection
Agreements; provided that (i) as of the date each such other
________
Interest Rate Protection Agreement is entered into (the
"Entry Date") and after giving effect thereto the aggregate
__________
notional principal amount of such Interest Rate Protection
Agreement and all other Interest Rate Protection Agreements
to which the Company is a party in effect on the Entry Date
(including those entered into pursuant to paragraphs (a)
and (b) above and those entered into pursuant to this
paragraph (c)) does not exceed an amount equal to the sum of
(x) the aggregate outstanding principal amount of the Loans
on the Entry Date plus (y) the aggregate unused amount of
____
the Commitments on the Entry Date and (ii) any such Interest
Rate Protection Agreements not entered into as required by
said paragraphs (a) and (b) shall be with one or more of the
Banks (and/or with other counterparties reasonably
satisfactory to the Majority Banks) and pursuant to
documentation and on terms reasonably satisfactory to the
Majority Banks.
96
<PAGE>
Credit Agreement
________________
8.14. Sale or Discount of Receivables. The Company
_______________________________
will not, and will 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.
8.15. Lines of Business. The Company will not, and
_________________
will not permit any of its Restricted Subsidiaries to, (a)
engage, directly or indirectly, in any business other than the
commercial radio business or (b) permit any broadcast station
licensed to or operated by the Company or any of its Restricted
Subsidiaries to cease broadcasting without consent of the FCC for
a period in excess of ten consecutive days or in any event for
more than 30 days. The Company will not permit any of its
Unrestricted Subsidiaries to engage, directly or indirectly, in
any business other than a business related to communications or
programming.
8.16. Transactions With Affiliates. Except as
____________________________
expressly permitted by this Agreement, the Company will not, and
will not permit any of its Restricted Subsidiaries to, directly
or indirectly: (a) make any Investment in an Affiliate; (b)
Dispose of any Property to an Affiliate; (c) merge into or
consolidate with or purchase or acquire Property from an
Affiliate; or (d) enter into any other transaction directly or
indirectly with or for the benefit of an Affiliate (including,
without limitation, Guarantees and assumptions of obligations of
an Affiliate); provided that (v) any Affiliate who is an
________
individual may serve as a director, officer or employee of the
Company or any of its Subsidiaries and receive reasonable
compensation for his or her services in such capacity, (w) the
Company and its Restricted Subsidiaries may enter into
transactions (other than extensions of credit by the Company or
any of its Restricted Subsidiaries to an Affiliate) providing for
the leasing of Property, the rendering or receipt of services or
the purchase or sale of inventory and other Property in the
ordinary course of business if the monetary or business
consideration arising therefrom would be substantially as
advantageous to the Company and its Restricted Subsidiaries as
the monetary or business consideration that would obtain in a
comparable transaction with a Person not an Affiliate, (x) the
Company (but not its Restricted Subsidiaries) may render and
perform management and similar services to or for Affiliates
whether or not in the ordinary course of business if the monetary
or business consideration arising therefrom would be
substantially as advantageous to the Company as the monetary or
business consideration that would obtain in a comparable
97
<PAGE>
Credit Agreement
________________
transaction with a Person not an Affiliate, (y) nothing herein
shall be deemed to prohibit the Company from engaging in
transactions provided for by, and performing its obligations
under, any of the Management Employment Agreements, the Karmazin
Options, the Karmazin Warrants, the Employee Options, the New
Infinity Warrants and the Stockholders' Agreement and the
agreements delivered pursuant to Section 6.01(k) hereof and (z)
nothing herein shall be deemed to prohibit the Company from
making Investments in Affiliates permitted by Section 8.08 hereof
and Restricted Payments to Affiliates permitted by Section
8.09(c) hereof.
8.17. Issuance of Capital Stock. The Company will
_________________________
not, and will not permit any of its Restricted Subsidiaries to,
issue any shares of its capital stock or any Equity Rights
therefor other than:
(a) in the case of the Company, the shares of capital
stock of the Company underlying the Karmazin Options, the
Karmazin Warrants, the Employee Options, the Infinity
Warrants and the New Infinity Warrants;
(b) in the case of the Company, additional Class A
Shares, Class B Shares and/or Class C Shares, provided that
________
(i) promptly following each such Equity Issuance, the
Company shall deliver to the Administrative Agent a
certificate of a Senior Officer of the Company containing
such information as is consistent with and is necessary to
update, as of the date of such Equity Issuance, the
representations contained in the first two sentences of
Section 7.15 hereof and (ii) both immediately prior to and
after giving effect to any such Equity Issuance no Default
exists and is continuing hereunder; provided, further that
________ _______
in connection with any issuance of capital stock as
permitted by this paragraph (b), the Company shall not
agree, contingently or otherwise, to pay any mandatory
payment of dividends on account of such capital stock or to
effect any mandatory repurchase or redemption of such
capital stock or to make any other mandatory Restricted
Payment with respect to or on account of such capital stock.
8.18. Use of Proceeds. The Company will, and will
_______________
cause each Subsidiary Borrower to, use the proceeds of the Loans
solely for the following purposes: (a) the proceeds of the
Working Capital Loans will be used solely for general corporate
purposes of the Company and its Restricted Subsidiaries and also
for cash Investments permitted by Section 8.08(h) hereof; (b) the
98
<PAGE>
Credit Agreement
________________
proceeds of Acquisition Loans made to the Company will be used
solely for the purpose of financing (i) Acquisitions of Stations
(including net working capital of Stations so Acquired) by
Restricted Subsidiaries permitted by Section 8.12 hereof (in
compliance with all applicable legal and regulatory
requirements), (ii) cash Investments in Unrestricted Subsidiaries
permitted by Section 8.08(h) hereof and (iii) Restricted Payments
permitted by Section 8.09(c) hereof; and (c) the proceeds of
Acquisition Loans made to any Subsidiary Borrower will be used
solely for the purpose of financing the Acquisition of a Station
(including net working capital of the Station so Acquired) by
such Subsidiary Borrower or for the purpose of refinancing
Acquisition Loans made to the Company in connection with such
Acquisition (in compliance with all applicable legal and
regulatory requirements).
8.19. Certain Obligations Respecting Restricted
_________________________________________
Subsidiaries. The Company will, and will cause each of its
____________
Restricted Subsidiaries to, take such action from time to time as
shall be necessary to ensure that the Company and each of its
Restricted Subsidiaries at all times owns (subject only to the
Lien of the Security Agreement) at least the same percentage of
the issued and outstanding shares of each class of stock of each
of its Restricted Subsidiaries as is owned on the date of this
Agreement. Without limiting the generality of the foregoing,
none of the Company nor any of its Restricted Subsidiaries shall
sell, transfer or otherwise Dispose of any shares of stock of any
Restricted Subsidiary owned by it, nor permit any such Restricted
Subsidiary to issue any shares of stock of any class whatsoever
to any Person (other than to the Company or to another Obligor).
In the event that (a) any such additional shares of stock shall
be issued by any such Restricted Subsidiary or (b) any Obligor
shall create or Acquire any additional Restricted Subsidiary and
shall thereby become the owner of shares of capital stock of such
Restricted Subsidiary, the respective Obligor agrees forthwith to
deliver to the Collateral Agent pursuant to the Security
Agreement the certificates evidencing such shares of stock,
accompanied by undated stock powers executed in blank and shall
take such other action as the Collateral Agent and/or the
Administrative Agent shall request to perfect the security
interest created therein pursuant to the Security Agreement.
8.20. Additional Subsidiary Guarantors. The Company
________________________________
will take such action, and will cause each of its Restricted
Subsidiaries to take such action, from time to time as shall be
necessary to ensure that all Restricted Subsidiaries of the
Company are Guarantors under the Guarantee Agreement and,
99
<PAGE>
Credit Agreement
________________
thereby, "Obligors" hereunder. Without limiting the generality
of the foregoing, in the event that the Company or any of its
existing Restricted Subsidiaries shall form any new Restricted
Subsidiary after the date hereof, the Company or such existing
Restricted Subsidiary will cause such new Restricted Subsidiary
to become a "Guarantor" under the Guarantee Agreement (and,
thereby, an "Obligor" hereunder) and a party to the Security
Agreement and to grant a security interest in its Properties to
the Collateral Agent as collateral security for the Secured
Obligations (as defined in the Security Agreement) pursuant to a
written instrument in form and substance satisfactory to the
Collateral Agent and the Administrative Agent, and to deliver
such proof of corporate action and incumbency of officers,
opinions of counsel and other documents as are consistent with
those delivered by each Obligor pursuant to Section 6.01 hereof
or as the Administrative Agent shall request.
8.21. Modifications of Certain Documents; Subordinated
________________________________________________
Debt.
____
(a) The Company will not, without the prior consent of
the Majority Banks, waive, amend or otherwise modify any
provision of any of the Subordinated Debt Documents or the Tax
Allocation Agreements.
(b) The Company will not, and will not permit any
Restricted Subsidiary to, amend or otherwise modify any provision
of its charter or by-laws in any manner that could reasonably be
expected to have a material adverse effect on the Banks without
the prior consent of the Majority Banks. The Company will not
waive, amend or otherwise modify any provision of any of the
Management Investor Agreements, the Infinity Warrants, the New
Infinity Warrants, the Stock Purchase Agreement, the
Stockholders' Agreement or the Securities Purchase Agreement in
any manner that could reasonably be expected to have a material
adverse effect on the Banks without the prior consent of the
Majority Banks.
(c) Except as expressly permitted by Section 8.09(c)
hereof, the Company will not, without the prior consent of the
Majority Banks, exercise any option or right under any of the
Subordinated Debt Documents to prepay, redeem or defease, or to
make any payment the effect of which is to prepay, redeem or
defease, any of the Subordinated Debt.
100
<PAGE>
Credit Agreement
________________
8.22. Unrestricted Subsidiaries; Corporate
____________________________________
Separateness.
____________
(a) The Company will deliver to the Banks a
notice as to the organization or Acquisition of each Unrestricted
Subsidiary promptly following such organization or Acquisition
together with a certificate of a Senior Officer of the Company
certifying that attached thereto are true copies of (i) the
resolutions duly adopted by the Board of Directors of the Company
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.
(b) The Company will, promptly upon receipt thereof by
the Company or its Subsidiaries, deliver to the Banks 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 Company will cause the management, business
and affairs of each of the Company and its Subsidiaries to be
conducted in such a manner so that each of the Company 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 Section 8.22, the Company
will not permit any Restricted Subsidiary to, directly or
indirectly: (i) make any Investment in an Unrestricted
Subsidiary, (ii) dispose of any Property to an Unrestricted
Subsidiary, (iii) merge into or consolidate with or purchase or
acquire Property 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
________
Company as the "common parent" of its Restricted Subsidiaries and
its 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 Section 8.22.
(d) The Company 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 generally accepted
accounting principles consistently applied. Without in any way
101
<PAGE>
Credit Agreement
________________
limiting the other provisions of this Section 8.22, the Company
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.
Section 9. Events of Default. If one or more of the
_________________
following events (herein called "Events of Default") shall occur
_________________
and be continuing:
(a) The Company shall default in the payment or
prepayment when due of any principal of or interest on any
Loan made to it; or the Company shall default in the payment
of any fee or any other amount payable by it hereunder which
shall remain unremedied for a period of three days; or any
Subsidiary Borrower shall default in the payment or
prepayment when due of any principal of or any interest on
any Loan made or assigned to it; or any Subsidiary Borrower
shall default in the payment of any fee or other amount
payable by it under the Subsidiary Loan Agreement to which
it is a party which shall remain unremedied for a period of
three days; or any Guarantor shall default in the payment of
any Guaranteed Obligation (as defined in the Guarantee
Agreement) or any other fee or other amount payable by it
under the Guarantee Agreement, provided that if such default
________
shall be in respect of any amount as to which this Agreement
or any other Basic Document (other than the Guarantee
Agreement) provides a period of grace for the payment
thereof, such default shall not be an "Event of Default"
until the expiry of such period of grace; or any Obligor
shall default in the payment of any fee or other amount
payable by it under the Security Documents which shall
remain unremedied for a period of five days after notice
from the intended recipient of such fee or other amount; or
(b) The Company or any of its Restricted Subsidiaries
shall default in the payment when due of any principal of or
interest on any of its other Indebtedness aggregating
$3,000,000 or more beyond any applicable grace periods, or
in the payment when due of any amount under any Interest
Rate Protection Agreement for a notional principal amount
exceeding $10,000,000; or the Company shall become obligated
to purchase or otherwise acquire, prior to the stated
maturity thereof, any of its other Indebtedness aggregating
$3,000,000 or more, or any event specified in any note,
agreement, indenture or other document evidencing or
relating to any such Indebtedness or any event specified in
102
<PAGE>
Credit Agreement
________________
any Interest Rate Protection Agreement shall occur if the
effect of such other event is to cause, or would (after
giving effect to any applicable notice requirement or grace
period) permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders)
to cause, such Indebtedness to become due, or to be prepaid,
purchased or otherwise acquired in full (whether by
redemption, purchase, offer to purchase or otherwise), prior
to its stated maturity or, in the case of an Interest Rate
Protection Agreement, to permit the payments owing under
such Interest Rate Protection Agreement to be liquidated; or
(c) Any representation, warranty or certification made
or deemed made in any Basic Document (or in any modification
or supplement thereto) by any Obligor, or any certificate
furnished to any Bank or any of the Agents pursuant to the
provisions thereof, shall prove to have been false or
misleading as of the time made or furnished in any material
respect; or
(d) The Company shall default in the performance of
any of its obligations under any of Section 8.05, 8.07,
8.08, 8.09, 8.10, 8.11, 8.12, 8.13, 8.14, 8.15, 8.17, 8.18,
8.21, 8.22(c) or 8.22(d) hereof; or the Company shall
default in the performance of any of its obligations under
Section 8.06, 8.16, 8.19 or 8.20 hereof and such default
shall continue unremedied for a period of 15 days; or any
other Obligor shall default in the performance of any of its
obligations, under this Agreement or any other Basic
Document which imposes on it a monetary obligation and such
default shall remain unremedied for a period of three days;
or, except as otherwise provided in this paragraph (d), any
Obligor shall default in the performance of any of its other
obligations in this Agreement or any other Basic Document
and such default shall continue unremedied for a period of
30 days after such Obligor obtains actual knowledge thereof
or after notice thereof to the Company by any Agent or any
Bank (through any Agent); or
(e) The Company or any of its Subsidiaries shall admit
in writing its inability to, or be generally unable to, pay
its debts as such debts become due; or
(f) The Company or any of its Subsidiaries shall
(i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its
103
<PAGE>
Credit Agreement
________________
Property, (ii) make a general assignment for the benefit of
its creditors, (iii) commence a voluntary case under the
Bankruptcy Code (as now or hereafter in effect), (iv) file a
petition seeking to take advantage of any other law relating
to bankruptcy, insolvency, reorganization, winding-up, or
composition or readjustment of debts, (v) fail to controvert
in a timely and appropriate manner, or acquiesce in writing
to, any petition filed against it in an involuntary case
under the Bankruptcy Code, or (vi) take any corporate action
for the purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without
the application or consent of the Company or any of its
Subsidiaries, in any court of competent jurisdiction,
seeking (i) its liquidation, reorganization, dissolution or
winding-up, or the composition or readjustment of its debts,
(ii) the appointment of a trustee, receiver, custodian,
liquidator or the like of the Company or such Subsidiary or
of all or any substantial part of its assets, or
(iii) similar relief in respect of the Company or such
Subsidiary under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of
debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or
ordering any of the foregoing shall be entered and continue
unstayed and in effect, for a period of 60 or more days; or
an order for relief against the Company or such Subsidiary
shall be entered in an involuntary case under the Bankruptcy
Code; or
(h) A final judgment or judgments for the payment of
money in excess of $1,000,000 in the aggregate shall be
rendered by one or more courts, administrative tribunals or
other bodies having jurisdiction against the Company and/or
any of its Restricted Subsidiaries and the same shall not be
discharged (or provision shall not be made for such
discharge), or a stay of execution thereof shall not be
procured, within 30 days from the date of entry thereof and
the Company or the relevant Restricted Subsidiary shall not,
within said period of 30 days, or such longer period during
which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed
during such appeal unless such judgment or judgments have
been rendered by the FCC and the Company or such Restricted
Subsidiary may not appeal or otherwise contest such judgment
or judgments until such time as the FCC institutes legal
proceedings in a court of competent jurisdiction with
104
<PAGE>
Credit Agreement
________________
respect to such judgment or judgments but only so long as
the FCC may not execute upon such judgment or judgments or
otherwise take any action to collect upon such judgment or
judgments except by way of such legal proceedings; or
(i) An event or condition specified in Section 8.01(g)
hereof shall occur or exist with respect to any Plan or
Multiemployer Plan and, as a result of such event or
condition, together with all other such events or
conditions, the Company or any ERISA Affiliate shall incur
or in the opinion of the Majority Banks shall be reasonably
likely to incur a liability to a Plan, a Multiemployer Plan
or PBGC (or any combination of the foregoing) which would
constitute, in the reasonable judgment of the Majority
Banks, a Material Adverse Effect; or
(j) Mel Karmazin shall cease to be actively involved
in the management and affairs of the Company and its
Subsidiaries and a replacement of at least equivalent
knowledge and experience in the radio broadcasting industry
is not appointed within 90 days; or the Management Investor
Group shall cease to own, beneficially and of record, all of
the issued and outstanding Class B Shares of the Company; or
the Management Investors (or their successors by
testamentary or intestate succession) shall cease to own,
beneficially and of record, at least 25% of the aggregate
voting rights of the outstanding capital stock of the
Company; or Mel Karmazin shall, after the date hereof, sell,
assign, transfer or otherwise dispose of capital stock of
the Company and voting rights represented thereby of greater
than 50% of the aggregate amount of capital stock of the
Company and voting rights represented thereby owned,
beneficially and of record, by Mel Karmazin on the date
hereof; or any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) other than the Management
____________
Investors or the SLH Investors is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to have
"beneficial ownership" of all shares that any such person
has the right to acquire without condition, other than the
passage of time, whether such right is exercisable
immediately or only after the passage of time), directly or
indirectly, of 25% or more of the aggregate voting rights of
the outstanding capital stock of the Company (on a fully
diluted basis); or
105
<PAGE>
Credit Agreement
________________
(k) Except for expiration in accordance with its
terms, any of the Security Documents shall be terminated or
shall cease to be in full force and effect, for whatever
reason; or shall cease to give the Collateral Agent the
Liens, rights, powers and privileges purported to be created
thereby (including without limitation a prior perfected
security interest in and Lien on all of the Properties
covered thereby in accordance with the terms thereof) in
favor of the Collateral Agent, subject to no equal or prior
Liens (except as permitted thereby); or
(l) The Company or any of its Restricted Subsidiaries
shall fail to file in a proper and timely manner for the
renewal of, or fail to keep in force, suffer the termination
or adverse amendment to, any Communications Franchise
(including without limitation any FCC License) at any time
held by any one or more of the Company and its Restricted
Subsidiaries and necessary to the operations of any one or
more of the Stations owned by any one or more of such
Persons; or
(m) A Change of Control Triggering Event under and as
defined in the Subordinated Indenture shall occur and any
one or more of the holders of the Subordinated Notes shall
elect to accept the Company's offer to purchase all or any
part of their Subordinated Notes as provided in Section 4.14
of the Subordinated Indenture; or
(n) A Default of the type described in paragraph (b)
hereof shall have occurred and be continuing with respect to
the Indebtedness of an Unrestricted Subsidiary and as a
result thereof the Company 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 Banks determine, in the exercise of reasonable
judgment, that the Company 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
(o) there shall have been asserted against the Company
or any of its Subsidiaries an Environmental Claim that, in
the judgment of the Majority Banks is reasonably likely to
be determined adversely to the Company or any of its
106
<PAGE>
Credit Agreement
________________
Subsidiaries, and the amount thereof (either individually or
in the aggregate) is reasonably likely to have a Material
Adverse Effect (insofar as such amount is payable by the
Company or any of its Subsidiaries but after deducting any
portion thereof that is reasonably expected to be paid by
other creditworthy Persons jointly and severally liable
therefor);
THEREUPON: (i) in the case of an Event of Default other than an
Event of Default with respect to any one or more of the Company
or Subsidiary Borrowers referred to in clause (f) or (g) of this
Section 9 the Administrative Agent may and, upon request of the
Majority Banks, shall, by notice to the Company, cancel all of
the Commitments then in effect and declare the principal amount
then outstanding of, and the accrued interest on, the Loans and
all other amounts owing by the Company and the Subsidiary
Borrowers to the Administrative Agent, the Collateral Agent, the
Co-Agents and the Banks under this Agreement, the Subsidiary Loan
Agreements and under the Notes to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable,
without presentment, demand, protest or other formalities of any
kind all of which are hereby expressly waived by the Borrowers
and (ii) in the case of the occurrence of an Event of Default
with respect to one or more of the Company or Subsidiary
Borrowers referred to in clause (f) or (g) of this Section 9, the
Commitments forthwith shall be automatically canceled and the
principal amount then outstanding of, and the accrued interest
on, the Loans and all other amounts payable by the Obligors under
this Agreement, the Subsidiary Loan Agreements and the Notes
shall become automatically immediately due and payable, without
presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by the Company (on its
own behalf and on behalf of the Subsidiary Borrowers).
Section 10. The Agents.
__________
10.1. Appointment, Powers and Immunities. Each Bank
__________________________________
hereby irrevocably appoints and authorizes each of the
Administrative Agent and the Collateral Agent to act as its agent
hereunder and under the other Basic Documents, in each case, with
such powers as are specifically delegated to such Agent by the
terms of this Agreement and of the other Basic Documents,
together with such other powers as are reasonably incidental
thereto. None of the Co-Agents, in their capacity as Co-Agents,
shall have any duties or responsibilities under this Agreement or
any fiduciary relationship with the Administrative Agent, the
107
<PAGE>
Credit Agreement
________________
Collateral Agent or any Bank, and no implied covenants,
functions, responsibilities, duties or liabilities shall be read
into this Agreement or any other Basic Document or otherwise
exist against any Co-Agent in its capacity as Co-Agent hereunder.
No Agent (which term, either in the singular or the plural, as
used in this sentence and in Section 10.05 and the first sentence
of Section 10.06 hereof shall include reference to such Agent's
affiliates and its own and its affiliates' officers, directors,
employees and agents): (a) shall have any duties or
responsibilities except those expressly set forth in the Basic
Documents; (b) shall by reason of any Basic Document be a trustee
for any of the Banks or the other Agents; (c) shall be
responsible to any of the Banks or the other Agents for any
recitals, statements, representations or warranties contained in
any Basic Document, or in any certificate or other document
referred to or provided for in, or received by it under any Basic
Document, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of any Basic Document or any other
document referred to or provided for herein or therein or for any
failure by any Obligor or any other Person to perform any of its
obligations hereunder or thereunder; (d) except as expressly
required by any Basic Document, shall be required to initiate or
conduct any litigation or collection proceedings under any Basic
Document; or (e) shall be responsible for any action taken or
omitted to be taken by it under any Basic Document or under any
other document or instrument referred to or provided for herein
or therein or in connection herewith or therewith, except for its
own gross negligence or willful misconduct. Without limiting the
generality of the foregoing, each of the Co-Agents and the
Collateral Agent shall be conclusively entitled to assume that
the conditions precedent set forth in Section 6.04 hereof have
been satisfied and the Administrative Agent shall be conclusively
entitled to assume that the conditions precedent set forth in
Section 6.04(a) hereof have been satisfied unless, in each case,
such Agent has received notices to the effect that any of such
conditions have not been satisfied from either the Majority Banks
or, with respect to the conversion of Term Loans under and as
defined in the Existing Credit Agreement to Term Loans hereunder,
the Majority Term Loan Banks, or, with respect to the conversion
of Revolving Credit Loans under and as defined in the Existing
Credit Agreement to Revolving Credit Loans hereunder or if the
related borrowing is of a Revolving Credit Loan, the Majority
Revolving Credit Banks, in each case referring to the relevant
subsection(s) and stating that the relevant condition(s) has not
been satisfied or unless the Company so notifies such Agent.
Each Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such
108
<PAGE>
Credit Agreement
________________
agents or attorneys-in-fact selected by such Agent in good faith.
Each Agent may deem and treat the payee of any Note as the holder
thereof for all purposes hereof unless and until a notice of the
assignment or transfer thereof shall have been filed with the
Administrative Agent, together with a notice of such assignment
or transfer to the Company. Each of the Banks hereby irrevocably
authorizes the Administrative Agent to execute, deliver and/or
perform and/or acknowledge each of the Assignment Agreements,
each of the Subsidiary Loan Agreements and the Guarantee
Agreement and hereby agrees to be bound by all of the obligations
stated therein to be applicable to it as a Bank thereunder or as
a beneficiary thereof as if it were a party thereto. Each of the
Banks hereby irrevocably authorizes the Collateral Agent to
execute, deliver and/or perform each of the Security Documents
(other than the Guarantee Agreement). The Collateral Agent is
hereby authorized to determine that the cost to the Obligors is
disproportionate to the benefit to be realized by the Banks by
perfecting a Lien in any given Property and that in such
instances, the applicable Obligors shall not be required to
perfect such Lien in favor of the Collateral Agent (for the
benefit of the Banks) and provided that the Collateral Agent
shall have determined in its sole discretion that such item of
Collateral is immaterial or of inconsequential value. Each Bank
hereby agrees that for purposes of Sections 10.03 and 10.05 of
the Subordinated Indenture, the Administrative Agent shall be the
"Representative" of the Banks under and as defined in the
Subordinated Indenture.
10.2. Reliance by Each Agent. Each Agent shall be
______________________
entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telex,
telegram or cable) believed by it to be genuine and correct and
to have been signed or sent by or on behalf of the proper Person
or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by such Agent.
Each Agent shall provide each other Agent with a copy of each
certification, notice or other communication received by it under
this Agreement or any of the other Basic Documents. As to any
matters not expressly provided for by this Agreement or any other
Basic Document, each Agent shall in all cases be fully protected
in acting, or in refraining from acting, hereunder or thereunder
in accordance with instructions given by the Majority Banks or,
if and to the extent required hereby or by any other Basic
Document, in accordance with instructions given by all of the
Banks, the Majority Term Loan Banks and/or the Majority Revolving
Credit Banks, as the case may be, and such instructions of such
Banks and any action taken or failure to act pursuant thereto
109
<PAGE>
Credit Agreement
________________
shall be binding on all of the Banks or, if applicable, on all of
the Term Loan Banks and/or Revolving Credit Banks, as the case
may be.
10.3. Defaults.
________
(a) No Agent shall be deemed to have knowledge or
notice of the occurrence of a Default unless such Agent has
received notice from another Agent, a Bank or the Company
specifying such Default and stating that such notice is a "Notice
of Default". In the event that any Agent receives such a notice
of the occurrence of a Default, such Agent shall give prompt
notice thereof to each other Agent and the Banks (and the
Administrative Agent shall give all other Agents and all Banks
prompt notice of each such non-payment).
(b) The Administrative Agent or the Collateral Agent,
as the case may be, shall (subject to Sections 10.01, 10.05
and 10.07 hereof) take such action with respect to any Default as
shall be directed by the Majority Banks, or, if and to the extent
required herein or in any other Basic Document, all of the Banks,
the Majority Term Loan Banks and/or the Majority Revolving Credit
Banks, as the case may be, provided that, unless and until the
________
Administrative Agent or the Collateral Agent, as the case may be,
shall have received such directions, the Administrative Agent or
the Collateral Agent, as the case may be, may (but shall not be
obligated to) take such action, or refrain from taking such
action, with respect to such Default as it shall deem advisable
in the best interest of all of the Banks, except to the extent
that this Agreement expressly requires that such action be taken,
or not be taken, only with the agreement or consent of the
Majority Banks, the Majority Term Loan Banks, the Majority
Revolving Credit Banks or all of the Banks.
10.4. Rights as a Bank. With respect to its
________________
Commitment(s) and the Loans made by it, each Agent (and any
successor to any Agent) in its capacity as a Bank hereunder or
under any Basic Document shall have the same rights and powers
hereunder or thereunder as any other Bank and may exercise the
same as though it were not acting as an Agent, and the term
"Bank" or "Banks" shall, unless the context otherwise indicates,
include each Agent in its individual capacity. Each Agent (and
any successor to any Agent) and its affiliates may (without
having to account therefor to any Bank) accept deposits from,
lend money to and generally engage in any kind of banking, trust
or other business with any of the Obligors (and any of their
Subsidiaries or Affiliates) as if it were not acting as an Agent,
110
<PAGE>
Credit Agreement
________________
and each Agent and its affiliates may accept fees and other
consideration from the Obligors for services in connection with
this Agreement or otherwise without having to account for the
same to the Banks.
10.5. Indemnification. The Banks agree to indemnify
_______________
each of the Administrative Agent and the Collateral Agent (to the
extent not reimbursed under Section 11.03 hereof, but without
limiting the obligations of the Company under said Section 11.03)
ratably in accordance with the aggregate principal amount of the
Loans and, if any of the Commitments are then in effect, the
aggregate unused amount of such Commitments held by the Banks,
for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative
Agent or the Collateral Agent, as the case may be, (including by
any Bank) arising out of or by reason of any investigation or any
way relating to or arising out of this Agreement or any other
Basic Document or any other documents contemplated by or referred
to herein or therein or the transactions contemplated hereby
(including, without limitation, the costs and expenses which the
Company is obligated to pay under Section 11.03 hereof, but
excluding, unless a Default has occurred and is continuing,
normal administrative costs and expenses incident to the
performance of its agency duties hereunder) or the enforcement of
any of the terms hereof or thereof or of any such other
documents, provided that no Bank shall be liable for any of the
foregoing to the extent they arise from the gross negligence or
willful misconduct of the party to be indemnified.
10.6. Non-Reliance on Agents and Other Banks. Each
______________________________________
Bank agrees that it has, independently and without reliance on
any Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit
analysis of the Company and its Subsidiaries and decision to
enter into this Agreement and that it will, independently and
without reliance upon any Agent or any other Bank, and based on
such documents and information as it shall deem appropriate at
the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the
other Basic Documents. No Agent shall be required to keep itself
informed as to the performance or observance by any Obligor or
other party of this Agreement or any of the other Basic Documents
or any other document referred to or provided for herein or
therein or to inspect the Properties or books of the Company or
any of its Subsidiaries. Except for notices, reports and other
111
<PAGE>
Credit Agreement
________________
documents and information expressly required to be furnished to
the Banks by the Administrative Agent hereunder, no Agent shall
have any duty or responsibility to provide any Bank with any
credit or other information concerning the affairs, financial
condition or business of the Company or any of its Subsidiaries
(or any of their affiliates) which may come into the possession
of such Agent or any of its affiliates.
10.7. Failure to Act. Except for action expressly
______________
required of the Administrative Agent or the Collateral Agent
hereunder and under the other Basic Documents, the Administrative
Agent or Collateral Agent, as the case may be, shall in all cases
be fully justified in failing or refusing to act hereunder and
thereunder unless it shall receive further assurances to its
satisfaction from the Banks of their indemnification obligations
under Section 10.05 hereof against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action.
10.8. Resignation or Removal of Agents. Subject to
________________________________
the appointment and acceptance of a successor Agent as provided
below, each Agent may resign at any time by giving notice thereof
to the Banks, the other Agents and the Company, and the
Administrative Agent, the Collateral Agent and any Co-Agent may
each be removed at any time with or without cause by the Majority
Banks. Upon any such resignation or removal, the Majority Banks
shall have the right to appoint a successor Administrative Agent,
Collateral Agent or Co-Agent, as the case may be, in each case
(except during the continuance of a Default or an Event of
Default) with the consent of the Company (which consent shall not
be unreasonably withheld), provided that any failure of the
________
Company to object to a proposed successor Agent within 15 days
after notice of the proposed appointment to the Company shall be
deemed to constitute consent of the Company to such appointment
of such proposed successor Agent. If no successor Agent shall
have been so appointed by the Majority Banks and shall have
accepted such appointment within 30 days after the retiring
Agent's giving of notice of resignation or the Majority Banks'
removal, as the case may be, and consented to by the Company (but
only if the consent of the Company to the appointment of a
successor Agent is required as provided above), then the retiring
Agent may, on behalf of the relevant Banks, appoint a successor
Agent, which shall be a Bank which has an office in New York,
New York with a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights,
112
<PAGE>
Credit Agreement
________________
powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation or
removal hereunder as an Agent, the provisions of this Section 11
shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as
the Agent.
10.9. Collateral Sub-Agents. Each Bank by its
_____________________
execution and delivery of this Agreement agrees that, in the
event it shall hold any Investments of any Obligor constituting
part of the Collateral under and as defined in the Security
Agreement, such Investments shall be held in the name and under
the control of such Bank, and such Bank shall hold such
Investments as a collateral sub-agent for the Collateral Agent
under the Security Agreement. Each Obligor by its execution and
delivery of this Agreement hereby consents to the foregoing.
Section 11. Miscellaneous.
_____________
11.1. Waiver. No failure on the part of any Agent or
______
any Bank to exercise and no delay in exercising, and no course of
dealing with respect to, any right, power or privilege under this
Agreement or any Note shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or
privilege under this Agreement or any Note preclude any other or
further exercise thereof or the exercise of any other right,
power or privilege. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.
11.2. Notices. All notices and other communications
_______
provided for herein and under the Security Documents (including,
without limitation, any modifications of, or waivers or consents
under, this Agreement) shall be given or made in writing
(including, without limitation, by telecopy) delivered to the
intended recipient at the "Address for Notices" specified below
its name on the signature pages hereof; or, as to any party, at
such other address as shall be designated by such party in a
notice to each other party. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered
or, in the case of a mailed notice, upon receipt, in each case
given or addressed as aforesaid.
11.3. Expenses, Etc. The Company agrees to pay or
______________
reimburse each of the Banks and each of the Agents for paying:
113
<PAGE>
Credit Agreement
________________
(a) all reasonable out-of-pocket costs and expenses of the Agents
(including, without limitation, the reasonable fees and expenses
of Milbank, Tweed, Hadley & McCloy, special New York counsel to
Chase), in connection with (i) the negotiation, preparation,
execution and delivery of this Agreement and the other Basic
Documents and the making of Loans hereunder and under the
Subsidiary Loan Agreements and (ii) any amendment, modification
or waiver of any of the terms of this Agreement or any of the
other Basic Documents; (b) all reasonable out-of-pocket costs and
expenses of each of the Banks and the Agents (including
reasonable counsels' fees) in connection with any Default and any
enforcement or collection proceedings relating thereto (including
the enforcement of this Section 11.03); and (c) all transfer,
stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of
this Agreement or any of the other Basic Documents or any other
document referred to herein or therein and all costs, expenses,
taxes, assessments and other charges incurred in connection with
any filing, registration, recording or perfection of any security
interest contemplated by this Agreement or any other Basic
Document or any other document referred to herein or therein.
The Company hereby agrees (to the fullest extent
permitted by law) to indemnify each Agent and each Bank and their
respective directors, officers, employees and agents for, and
hold each of them harmless against, any and all losses,
liabilities, claims, damages or expenses incurred by any of them
(including any and all losses, liabilities, claims, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements incurred by any Agent to any Bank) arising out of
or by reason of any investigation or litigation or other
proceedings (including any threatened investigation or litigation
or other proceedings) relating to any of the Commitments and the
Loans or any actual or proposed use by the Company or any of its
Subsidiaries of the proceeds of any of the Loans, including,
without limitation, the reasonable fees and disbursements of
counsel incurred in connection with any such investigation or
litigation or other proceedings (but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason of
the gross negligence or willful misconduct of the Person to be
indemnified).
11.4. Amendments, Etc.
________________
(a) Any provision of this Agreement (including the
Schedules and Exhibits hereto) or the Infinity Term Loan Notes,
the Working Capital Loan Notes or the Infinity Acquisition Loan
114
<PAGE>
Credit Agreement
________________
Notes may be amended only by an instrument in writing signed by
the Company and (except as otherwise provided in Section 11.04(b)
hereof) the Majority Banks, or by the Company and the
Administrative Agent (acting with the agreement or consent of the
Majority Banks), and any provision of this Agreement (including
the Schedules and Exhibits hereto) or the Infinity Term Loan
Notes, the Working Capital Loan Notes or the Infinity Acquisition
Loan Notes may be waived by the Majority Banks or by the
Administrative Agent (acting with the agreement or consent of the
Majority Banks); provided that: (i) any modification or waiver
________
altering the terms of Section 4 or 5 hereof shall require the
agreement or consent of all of the Banks that would be adversely
affected thereby; (ii) any alteration of this Section 11.04 or
the definition of "Majority Banks", "Term Loan Banks", "Revolving
Credit Banks", "Majority Term Loan Banks", "Majority Revolving
Credit Banks" or "Inter-Bank Assignment" shall require the
agreement or consent of each of the Banks; (iii) any modification
or waiver extending any date fixed for any scheduled payment of
principal of or interest on the Term Loans, or reducing the
amount of any scheduled payment of principal thereof or the rate
at which interest is payable thereon or the amount of any fee
payable to the Term Loan Banks hereunder shall require the
agreement or consent of all of the Term Loan Banks, provided
________
that, solely for the purpose of determining whether or not the
condition precedent specified in Section 6.04(a)(i) hereof is
satisfied with respect to borrowings under the Commitments, at
any time during the continuance of an Event of Default of the
type specified in Section 9(a) hereof, any modification or waiver
extending the date fixed for any scheduled payment of principal
of or interest on the Term Loans shall also require the agreement
or consent of the Majority Revolving Credit Banks and (iv) any
modification or waiver extending any date fixed for any scheduled
payment of principal of or interest on the Revolving Credit Loans
or reducing the amount of any scheduled payment of principal
thereof or the rate at which interest is payable thereon or the
amount of any fee payable to the Revolving Credit Banks hereunder
shall require the agreement and consent of all of the Revolving
Credit Banks and any extension of the term or increase in the
amount of the Commitment of any Revolving Credit Bank shall
require the agreement or consent of such Revolving Credit Bank.
(b) Notwithstanding the provisions of (but without
limiting the effect of) Section 11.04(a) hereof, any modification
or waiver of any of the conditions precedent specified in
Section 6 hereof shall require: (i) in the case of the
conditions precedent specified in Section 6.01 hereof (other than
Section 6.01(j) hereof) and Sections 6.02, 6.03 and 6.04 hereof,
115
<PAGE>
Credit Agreement
________________
the agreement or consent of the Majority Banks and (ii) in the
case of the condition precedent specified in Section 6.01(j)
hereof, the agreement or consent of all of the Banks.
(c) Any provision of any Subsidiary Loan Agreement
(including the Schedules and Exhibits thereto) or the Notes
issued pursuant thereto may be amended only by an instrument in
writing signed by the Subsidiary Borrower party thereto and
(except as otherwise provided in Section 11.04(d) hereof) the
Administrative Agent (acting with the agreement or consent of the
Majority Banks), and any provision of any Subsidiary Loan
Agreement (including the Schedules and Exhibits thereto) or the
Notes issued pursuant thereto may be waived by the Majority Banks
or by the Administrative Agent (acting with the agreement or
consent of the Majority Banks); provided that: (i) any
________
modification or waiver altering the terms of Section 4 or 5 of
such Subsidiary Loan Agreement shall require the agreement or
consent of all of the Banks that would be adversely affected
thereby, (ii) any alteration of the definition of "Majority
Banks" as such term is used in such Subsidiary Loan Agreement
shall require the Agreement or consent of each of the Banks;
(iii) any modification or waiver extending any date fixed for any
scheduled payment of principal of or interest on the HBC Term
Loans or SBC Term Loans, or reducing the amount of any scheduled
payment of principal thereof or the rate at which interest is
payable thereon or the amount of any fee payable to the Term Loan
Banks thereunder shall require the agreement or consent of all of
the Term Loan Banks, provided that, solely for the purpose of
________
determining whether or not the condition precedent specified in
Section 6.04(a)(i) hereof is satisfied with respect to borrowings
under the Commitments, at any time during the continuance of an
Event of Default of the type specified in Section 9(a) hereof,
any modification or waiver extending the date fixed for any
scheduled payment of principal of or interest on the HBC Term
Loans or SBC Term Loans shall also require the agreement or
consent of the Majority Revolving Credit Banks and (iv) any
modification or waiver extending any date fixed for any scheduled
payment of principal of or interest on the Subsidiary Acquisition
Loans or reducing the amount of any scheduled payment of
principal thereof or the rate at which interest is payable
thereon or the amount of any fee payable to the Revolving Credit
Banks thereunder shall require the agreement and consent of all
of the Revolving Credit Banks.
(d) Notwithstanding the provisions of (but without
limiting the effect of) Section 11.04(c) hereof, any modification
or waiver of any of the conditions precedent specified in Section
116
<PAGE>
Credit Agreement
________________
6 of any Subsidiary Loan Agreement shall require: (i) in the
case of the HBC Term Loan Agreement and the SBC Term Loan
Agreement, the agreement or consent of the Majority Term Loan
Banks and (ii) in the case of any other Subsidiary Loan Agreement
including, without limitation, the Infinity of Boston Acquisition
Loan Agreement and the Infinity of California Acquisition Loan
Agreement, the agreement or consent of the Majority Revolving
Credit Banks.
(e) The Administrative Agent may, with the prior
consent of the Majority Banks (but not otherwise), consent to any
modification, supplement or waiver of any Assignment Agreement or
the Guarantee Agreement, provided that, without the prior consent
________
of each Bank, the Administrative Agent may not (except as
provided herein or in the Guarantee Agreement) release any
Guarantor from its obligations under the Guarantee Agreement
except that no such consent shall be required, and the
Administrative Agent is hereby authorized, to release any
Guarantor from its obligations under the Guarantee Agreement if
the capital stock of such Guarantor is the subject of a
Disposition of Property permitted hereunder or to which the
Majority Banks have consented hereunder.
(f) The Collateral Agent may, with the prior consent
of the Majority Banks (but not otherwise), consent to any
modification, supplement or waiver of any of the other Security
Documents, provided that, without the prior consent of each Bank,
________
the Collateral Agent may not (except as provided herein or in the
other Security Documents) modify, supplement or waive any term
with respect to the application of proceeds under and pursuant to
any such other Security Document or release any collateral or
otherwise terminate any Lien under any Security Document
providing for collateral security except that no such consent
shall be required, and the Collateral Agent is hereby authorized,
to release any Lien covering Property which is the subject of a
Disposition of Property permitted hereunder or to which the
Majority Banks have consented hereunder.
(g) Anything in this Section 11.04 to the contrary
notwithstanding, any modification or waiver of any provision of
this Agreement (including the Schedules and Exhibits hereto) or
any of the Subsidiary Loan Agreements or any of the Notes or any
of the Security Documents reducing the rights or increasing the
obligations of any Agent hereunder or thereunder shall require
the agreement or consent of such Agent.
117
<PAGE>
Credit Agreement
________________
11.5. Successors and Assigns. This Agreement shall be
______________________
binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, provided that,
________
except as permitted by Section 2.01(d)(ii) hereof, the Company
may not assign any of its rights or obligations hereunder or
under its Notes without the prior consent of all of the Banks and
the Agents and no Subsidiary Borrower may assign any of its
rights or obligations under the Subsidiary Loan Agreement to
which it is a party or its Notes without the prior consent of all
of the Banks that hold Loans made to such Subsidiary Borrower and
the Administrative Agent.
11.6. Bank Assignments and Participations.
___________________________________
(a) Subject to paragraph (b) below, each Bank may
assign to any other Bank or any other bank or financial
institution all or any part of its Loans and Commitments,
provided that: (i) except for an assignment to any affiliate or
majority-owned subsidiary of the assigning Bank or to any other
Bank (each, an "Inter-Bank Assignment") or an assignment
_____________________
consented to by the Administrative Agent, any assignment of less
than all of such Bank's Loans and/or Commitments of each series
to a single assignee shall be in an amount such that, after
giving effect to such assignment and any other contemporaneous
assignment(s) to such assignee by any other Bank(s), such
assignee shall hold Loans and/or Commitments aggregating at least
$5,000,000 and (ii) each such partial assignment by such Bank of
its Term Loans or its Revolving Credit Loans or Commitments shall
be made in such a manner so that the same proportion of each of
its outstanding Term Loans or Revolving Credit Loans and
Commitments (if then in effect), as the case may be, is assigned
to the assignee. Upon written notice to the Company and the
Administrative Agent of an assignment permitted hereunder (which
notice shall identify the assignee, the amount of the assignor's
Loan(s) and Commitment(s) assigned in detail reasonably
satisfactory to the Administrative Agent), the assignee shall
have, to the extent of such assignment, the obligations, rights
and benefits of a Bank hereunder holding the Loan(s) and/or
Commitment(s) assigned to it (in addition to the Loan(s) and
Commitment(s) of such series, if any, theretofore held by such
assignee). In connection with the assignment by a Bank of all or
any portion of its Loan(s) and/or Commitment(s) to another Person
as permitted hereunder, upon request of such Bank or such Person,
the Company or any Subsidiary Borrower will issue promissory
notes in substantially the form of Exhibit A-1, A-2, A-3 or A-4
hereto (as appropriate) (as such form may have been modified),
each dated the date of the Notes originally issued hereunder or
118
<PAGE>
Credit Agreement
________________
under the related Subsidiary Loan Agreement (or, if interest has
been paid on such Loan(s), dated the Interest Accrual Date for
such Loans) payable to the order of such Person in a principal
amount equal to the Loan(s) so assigned and otherwise duly
completed, and the assigning Bank shall make an appropriate
notation on the schedule attached to the related Note(s) held by
it as to the principal amount of the Loan(s) and/or Commitment(s)
so assigned.
(b) If any assignment made pursuant to paragraph (a),
above shall be made to any Person that is organized under the
laws of any jurisdiction other than the United States of America
or any State thereof, such Person shall furnish such
certificates, documents or other evidence to the Company and the
Administrative Agent as shall be required by Section 5.06 hereof
to evidence such Person's exemption from U.S. withholding taxes
with respect to any payments under or pursuant to this Agreement
because any such payments to such Person are effectively
connected with the conduct by such Person of a trade or business
in the United States.
(c) A Bank may sell or agree to sell to one or more
other Persons a participation in all or any part of any Loans
held by it, or in its Commitment(s), provided that each purchaser
of a participation (a "Participant"), except as otherwise
___________
provided in Section 4.07(c) or 5.06(e) hereof, shall not have any
other rights or benefits under this Agreement or any Note or any
other Basic Document (the Participant's rights against such Bank
in respect of such participation to be those set forth in the
agreements executed by such Bank in favor of the Participant).
Each Bank's right to sell such participations is subject to the
following conditions: (i) such Bank's obligations under this
Agreement (including, without limitation, its Commitment(s), if
any, hereunder) shall remain unchanged, (ii) such Bank shall
remain solely responsible for the performance of such obligations
and (iii) the Obligors, the Agents, and the other Banks shall
continue to be entitled to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under
this Agreement. All amounts payable by the Company to any Bank
under Section 5 hereof or by any Subsidiary Borrower as
contemplated by Section 5 of the Subsidiary Loan Agreement to
which such Subsidiary Borrower is a party in respect of the
Loan(s) held by it, and its Commitment(s), shall be determined as
if such Bank had not sold or agreed to sell any participations in
such Loan(s) and Commitment(s), and as if such Bank were funding
and maintaining each of such Loan(s) and Commitment(s) in the
same way that it is funding and maintaining the portion of such
119
<PAGE>
Credit Agreement
________________
Loan and Commitment in which no participations have been sold.
In no event shall a Bank that sells a participation agree with
the Participant to take or refrain from taking any action
hereunder or under any other Basic Document except that such Bank
may agree with the Participant that it will, on behalf of the
Participant, request the Company to furnish information to such
Bank for delivery to the Participant, of the type specified in
Section 8.01(p) hereof and may further agree with the Participant
that it will not, without the consent of the Participant, agree
to any of the following (but only if and to the extent that such
agreement would have an adverse effect on the Participant):
(i) increase or extend the term, or extend the time or waive any
requirement for the reduction or termination, of such Bank's
related Commitment(s) in which the Participant holds a
participation, (ii) extend the date fixed for the payment of
principal of or interest on the related Loan in which the
Participant holds a participation or any portion of any fee
payable to the Participant, (iii) reduce the amount of any such
payment of principal or (iv) reduce the rate at which interest is
payable thereon, or any fee payable to the Participant, to a
level below the rate at which the Participant is entitled to
receive such interest or fee.
(d) Anything in this Section 11.06 to the contrary
notwithstanding, any Bank may assign and pledge all or any
portion of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating
Circular issued by such Federal Reserve Bank. No such assignment
shall release the assigning Bank from its obligations hereunder.
(e) A Bank may furnish any information concerning the
Company or any of its Subsidiaries in the possession of such Bank
from time to time to assignees and participants (including
prospective assignees and participants), subject, however, to the
provisions of Section 11.12(b) hereof.
11.7. Survival. The obligations of the Company under
________
Sections 5.01, 5.05, 5.06 and 11.03 hereof and the obligations of
the Banks under Sections 10.05 and 11.12 hereof shall survive the
repayment of the Loans and the termination of the Commitments.
In addition, each representation and warranty made, or deemed to
be made by a notice of any borrowing, herein or pursuant hereto
shall survive the making of such representation and warranty, and
no Bank shall be deemed to have waived, by reason of making any
Loan hereunder, any Default which may arise by reason of such
representation or warranty proving to have been false or
120
<PAGE>
Credit Agreement
________________
misleading, notwithstanding that such Bank or any of the Agents
may have had notice or knowledge or reason to believe that such
representation or warranty was false or misleading at the time
such extension of credit was made.
11.8. Captions. The table of contents and captions
________
and section headings appearing herein are included solely for
convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
11.9. Counterparts. This Agreement may be executed in
____________
any number of counterparts, all of which taken together shall
constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such
counterpart.
11.10. Governing Law; Submission to Jurisdiction.
_________________________________________
This Agreement and the Notes shall be governed by, and construed
in accordance with, the law of the State of New York. The
Company hereby submits to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New
York and of any New York state court sitting in New York City for
the purposes of all legal proceedings arising out of or relating
to this Agreement or the transactions contemplated hereby. The
Company irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a
court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
11.11. Waiver of Jury Trial. EACH OF THE COMPANY, THE
____________________
AGENTS AND THE BANKS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11.12. Treatment of Certain Information;
_________________________________
Confidentiality.
_______________
(a) The Company acknowledges that (i) services may be
offered or provided to it (in connection with this Agreement or
otherwise) by each Bank or by one or more subsidiaries or
affiliates of such Bank and (ii) information delivered to each
Bank by the Company 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
121
<PAGE>
Credit Agreement
________________
by the provisions of clause (b) below as if it were a Bank
hereunder.
(b) Each Bank and each 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 their 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 Company pursuant to this
Agreement which is identified by the Company as being
confidential at the time the same is delivered to the Banks or
the Agents, 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 Banks or any of the Agents, (iii) at their
request, to bank examiners or other regulators having analogous
responsibilities, (iv) to auditors or accountants, (v) to the
Agents or any other Bank (or to Chase Securities, Inc.), (vi) in
connection with any litigation arising under or in connection
with the transactions contemplated by this Agreement, the other
Basic Documents or any of the Basic Documents to which any one or
more of the Banks or any of the Agents is a party, (vii) to a
subsidiary or affiliate of such Bank 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) first executes and
delivers to the respective Bank a Confidentiality Agreement
substantially in the form of Exhibit G hereto. In no event shall
any Bank or any Agent be obligated or required to return any
materials furnished by the Company.
11.13. Senior Indebtedness. Each of the parties
___________________
hereto agrees that all of the obligations of the Company
hereunder and under the Notes constitute "Senior Indebtedness"
and "Significant Senior Indebtedness" under and as defined in and
for all purposes of the Subordinated Indenture.
11.14. Obligations of Banks under Subsidiary Loan
__________________________________________
Agreements. Each Bank hereby agrees that it will perform each of
__________
the obligations applicable to a "Bank" under each Subsidiary Loan
Agreement governing Subsidiary Loans held by such Bank of any
Subsidiary Borrower and under the Guarantee Agreement and, upon
the execution and delivery of such documents, the terms of each
thereof are incorporated herein by reference.
122
<PAGE>
Credit Agreement
________________
IN WITNESS WHEREOF, the parties hereto have caused this
Amended and Restated Credit Agreement to be duly executed as of
the day and year first above written.
INFINITY BROADCASTING CORPORATION
By /s/ Farid Suleman
_________________________________
Name: Farid Suleman
Title: Vice President - Finance
Address for Notices:
Infinity Broadcasting Corporation
600 Madison Avenue
New York, New York 10022
Attention: Mel Karmazin
Telecopier No.: (212) 888-2959
Telephone No.: (212) 750-6400
123
<PAGE>
Credit Agreement
________________
BANKS
_____
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By /s/ William E. Rottino
__________________________________
Name: William E. Rottino
Title: Vice President
Address for Notices:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Telecopier No.: (212) 552-4905
Telephone No.: (212) 552-5116
Attention: John P. White
Lending Office for all Loans:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
124
<PAGE>
Credit Agreement
________________
ABN AMRO BANK N.V.
By /s/ Susan D. Nickey
_________________________________
Name: Susan D. Nickey
Title: Vice President
By /s/ James B. Sieger
_________________________________
Name: James B. Sieger
Title: Vice President
Address for Notices:
ABN AMRO Bank N.V.
135 South LaSalle Street
Chicago, IL 60603
Attention: Susan D. Nickey
Vice President
Telecopier No.: (312) 750-6217
Telephone No.: (312) 443-2869
With copies to:
______________
ABN AMRO Bank N.V.
500 Park Avenue
New York, NY 10022
Attention: Denise Gallagher
Vice President
Telecopier No.: (212) 832-7129
Telephone No.: (212) 446-4135
Lending Office for all Loans:
500 Park Avenue
New York, NY 10022
Attention: Denise Gallagher
125
<PAGE>
Credit Agreement
________________
Vice President
THE BANK OF CALIFORNIA, N.A.
By /s/ David Chicca
_________________________________
Name: David Chicca
Title: Vice President
Address for Notices:
The Bank of California
400 California Street
17th Floor
San Francisco, CA 94104
Attention: David Chicca
Telecopier No.: (415) 765-2634
Telephone No.: (415) 765-2671
Lending Office for all Loans:
126
<PAGE>
Credit Agreement
________________
BANK OF MONTREAL
By /s/ Gretchen Shugart
__________________________________
Name: Gretchen Shugart
Title: Director
Address for Notices:
Bank of Montreal
430 Park Avenue - 16th Floor
New York, NY 10022
Telecopier No.: (212) 605-1525
(212) 605-1648
Telephone No.: (212) 605-1423
Attention: Catherine Shea
Director
Lending Office for all Loans:
115 South LaSalle Street - 11th Fl.
Chicago, Illinois 60603
127
<PAGE>
Credit Agreement
________________
THE BANK OF NEW YORK
By /s/ Brendan T. Nedzi
_________________________________
Name: Brendan T. Nedzi
Title: Vice President
Address for Notices:
The Bank of New York
One Wall Street
16th Floor
New York, NY 10286
Telecopier No.: (212) 635-8595, 8593
Telephone No.: (212) 635-8691
Attention: John Eckes,
Vice President,
Communications,
Entertainment and
Publishing Division
Lending Office for all Loans:
The Bank of New York
One Wall Street
16th Floor
New York, NY 10286
Telecopier No.: (212) 635-8679
Telephone No.: (212) 635-8729
Attention: Patricia Clancy
128
<PAGE>
Credit Agreement
________________
THE BANK OF NOVA SCOTIA
By /s/ Vince Fitzgerald
__________________________________
Name: Vince Fitzgerald
Title: Authorized Signatory
Address for Notices:
The Bank of Nova Scotia
One Liberty Plaza
New York, NY 10006
Attention: Claudia Chifos
Telecopier No.: (212) 225-5090
Telephone No.: (212) 225-5099
Lending Office for all Loans:
One Liberty Plaza
New York, NY 10006
129
<PAGE>
Credit Agreement
________________
BANQUE NATIONALE DE PARIS
By /s/ Alan J. Mustacchi
_________________________________
Name: Alan J. Mustacchi
Title: Assistant Vice President
By /s/ Christopher J. Kiely
_________________________________
Name: Christopher J. Kiely
Title: Vice President
Address for Notices:
Banque Nationale de Paris
499 Park Avenue
New York, NY 10022
Attention: Steve Berg
Telecopier No.: (212) 418-8269
Telephone No.: (212) 418-8246
Lending Office for all Loans:
499 Park Avenue
New York, NY 10022
Attention: Steve Berg
130
<PAGE>
Credit Agreement
________________
BANQUE PARIBAS
By /s/ Errol R. Antzis
_________________________________
Name: Errol R. Antzis
Title: Vice President, Group Head
Address for Notices:
Banque Paribas
787 Seventh Avenue, 32nd Floor
New York, NY 10019
Attention: Errol Antzis
Telecopier No.: (212) 841-2363
Telephone No.: (212) 841-2126
Lending Office for all Loans:
131
<PAGE>
Credit Agreement
________________
CHEMICAL BANK
By /s/ Terrence J. Anderson
__________________________________
Name: Terrence J. Anderson
Title: Vice President
Address for Notices:
Chemical Bank
Media and Entertainment Group
270 Park Avenue - 10th Flr.
New York, NY 10172
Telecopier No.: (212) 270-2056
Telephone No.: (212) 270-1526
Attention: Terrence J. Anderson
Vice President
Lending Office for all Loans:
Chemical Bank
Media and Entertainment Group
270 Park Avenue - 10th Flr.
New York, NY 10172
Attn: Lori Schlanger
Vice President
132
<PAGE>
Credit Agreement
________________
CIBC, Inc.
By /s/ John P. Haltmaler
_________________________________
Name: John P. Haltmaler
Title: Vice President
Address for Notices:
CIBC, Inc.
425 Lexington Avenue
6th Floor
New York, New York 10017
Attention: Harold Birk
Telecopier No.: (212) 856-3998
Telephone No.: (212) 856-3554
Lending Office for all Loans:
CIBC, Inc.
425 Lexington Avenue
6th Floor
New York, New York 10017
133
<PAGE>
Credit Agreement
________________
COMPAGNIE FINANCI RE DE CIC ET DE
L'UNION EUROP ENNE
By /s/ Marcus Edward
_________________________________
Name: Marcus Edward
Title: Vice President
By /s/ Sean Mounier
_________________________________
Name: Sean Mounier
Title: Vice President
Address for Notices:
Compagnie Financi re de CIC et
de l'Union Europ enne
520 Madison Avenue, 37th Floor
New York, NY 10022
Attention: Marcus Edward
Telecopier No.: (212) 715-4477
Telephone No.: (212) 715-4427
Lending Office for all Loans:
Compagnie Financi re de CIC et
de l'Union Europ enne
520 Madison Avenue, 37th Floor
New York, NY 10022
134
<PAGE>
Credit Agreement
________________
CONTINENTAL BANK N.A.
By /s/ L. Dustin Vincent, III
_________________________________
Name: L. Dustin Vincent, III
Title: Vice President
Address for Notices:
Continental Bank N.A.
231 S. LaSalle Street
PM HLT 11-Q
Chicago, IL 60697
Attention: L. Dustin Vincent
Telecopier No.: (312) 828-3864
Telephone No.: (312) 828-8912
Lending Office for all Loans:
231 S. LaSalle Street
PM HLT 11-Q
Chicago, IL 60697
135
<PAGE>
Credit Agreement
________________
THE FIRST NATIONAL BANK OF BOSTON
By /s/ Lisa Gallagher
_________________________________
Name: Lisa Gallagher
Title: Director
Address for Notices:
Bank of Boston
100 Federal Street
Boston, MA 02110
Attention: Steve Pratt-Otto
Telecopier No.: (617) 434-3401
Telephone No.: (617) 434-5425
Lending Office for all Loans:
Bank of Boston
Loan Processing
100 Federal Street (01-1B-12)
Boston, MA 02110
136
<PAGE>
Credit Agreement
________________
NATIONAL BANK OF CANADA
By /s/ Teresa Carrasco
_________________________________
Name: Teresa Carrasco
Title: Vice President
By /s/ Theresa White
_________________________________
Name: Theresa White
Title: Assistant Vice President
Address for Notices:
National Bank of Canada
New York Branch
125 West 55th Street
New York, NY 10019
Attention: Teresa Carrasco
Vice President
Telecopier No.: (212) 632-8545
Telephone No.: (212) 632-8523
Lending Office for all Loans:
National Bank of Canada
New York Branch
125 West 55th Street
New York, NY 10019
137
<PAGE>
Credit Agreement
________________
NATIONAL WESTMINSTER BANK USA
By /s/ Eric Meyer
_________________________________
Name: Eric Meyer
Title: Vice President
Address for Notices:
National Westminster Bank USA
175 Water Street, 27th Floor
New York, NY 10038
Attention: Margot Michalski
Telecopier No.: (212) 602-2158
Telephone No.: (212) 602-2615
Lending Office for all Loans:
National Westminster Bank USA
Loan Operations Dept., 11th Floor
80 Pine Street
New York, NY 10005-1702
138
<PAGE>
Credit Agreement
________________
CORESTATES BANK, N.A.
By /s/ Edward Kittrell
_________________________________
Name: Edward Kittrell
Title: Vice President
Address for Notices:
Attention:
Telecopier No.:
Telephone No.:
Lending Office for all Loans:
139
<PAGE>
Credit Agreement
________________
SOCIETY NATIONAL BANK
By /s/ Paul S. Nestvold
_________________________________
Name: Paul S. Nestvold
Title: Officer
Address for Notices:
Society National Bank
127 Public Square
6th Floor
Media Finance Division
Cleveland, OH 44114
Attention: Paul S. Nestvold
Telecopier No.: (216) 689-4666
Telephone No.: (216) 689-4458
Lending Office for all Loans:
Society National Bank
127 Public Square
6th Floor
Media Finance Division
Cleveland, OH 44114
140
<PAGE>
Credit Agreement
________________
UNION BANK
By /s/ James L. Leahy
_________________________________
Name: James L. Leahy
Title: Vice President
Address for Notices:
Union Bank
Communications/Media Group
445 South Figueroa Street
Los Angeles, CA 90071
Attention: James L. Leahy
Telecopier No.: (213) 236-5747
Telephone No.: (213) 236-7155
Lending Office for all Loans:
Communications/Media Group
445 South Figueroa Street
Los Angeles, CA 90071
141
<PAGE>
Credit Agreement
________________
AGENTS
______
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
By /s/ William E. Rottino
__________________________________
Name: William E. Rottino
Title: Vice President
Address for Notices to Chase as
Administrative Agent:
The Chase Manhattan Bank
(National Association)
New York Agency
4 Chase Metrotech Center
13th Floor
Brooklyn, New York 11245
Telecopier No.: (718) 242-6900
Telephone No.: (718) 242-7970
Attention: Mary Murphy
142
<PAGE>
Credit Agreement
________________
BANK OF MONTREAL,
as Co-Agent
By /s/ Gretchen Shugart
__________________________________
Name: Gretchen Shugart
Title: Director
Addresses for Notices to Bank
of Montreal as Co-Agent:
Bank of Montreal
430 Park Avenue, 16th Floor
New York, NY 10022
Telecopier No.: (212) 605-1525
(212) 605-1648
Telephone No.: (212) 605-1423
Attention: Catherine Shea
Director
143
<PAGE>
Credit Agreement
________________
THE BANK OF NEW YORK,
as Co-Agent
By /s/ Brendan T. Nedzi
__________________________________
Name: Brendan T. Nedzi
Title: Vice President
Address for Notices:
The Bank of New York
One Wall Street
16th Floor
New York, NY 10286
Telecopier No.: (212) 635-8595, 8593
Telephone No.: (212) 635-8694
Attention: David Dobies
Vice President,
Communications,
Entertainment and
Publishing Division
144
<PAGE>
Credit Agreement
________________
CHEMICAL BANK,
as Co-Agent
By /s/ Terrence J. Anderson
__________________________________
Name: Terrence J. Anderson
Title: Vice President
Address for Notices to Chemical Bank
as Co-Agent:
Chemical Bank
Media and Entertainment Group
270 Park Avenue - 10th Floor
New York, NY 10172
Telecopier No.: (212) 270-2056
Telephone No.: (212) 270-1526
Attention: Terrence J. Anderson
Vice President
145
<PAGE>
Credit Agreement
________________
CHEMICAL BANK,
as Collateral Agent
By /s/ Terrence J. Anderson
__________________________________
Name: Terrence J. Anderson
Title: Vice President
Address for Notices to Chemical Bank
as Collateral Agent:
Chemical Bank
Media and Entertainment Group
270 Park Avenue - 10th Floor
New York, NY 10172
Telecopier No.: (212) 270-2056
Telephone No.: (212) 270-1526
Attention: Terrence J. Anderson
Vice President
146
<PAGE>
Credit Agreement
________________
Omitted Schedules to the
Amended and Restated Credit Agreement,
Dated as of June 7, 1994, between the Company, each
of the lenders identified under the caption "Banks"
on the signature pages thereof (the "Banks"),
The Chase Manhattan Bank (National Association),
as administrative agent for the Banks,
Bank of Montreal, The Bank of New York and
Chemical Bank, as co-agents for the Banks,
and Chemical Bank, as collateral agent for the Banks
____________________________________________________
I. Banks, Loans and Commitments
II. Permitted Liens
III. Material Agreements
IV. Subsidiaries and Investments
V. Litigation
VI. Conflicts with Certain Agreements
VII. Taxes
In lieu of filing these schedules to the Credit Agreement,
the Company agrees to furnish supplementally a copy of any such
omitted schedule to the Securities and Exchange Commission upon
request.
<PAGE>
EXHIBIT A-1
[Form of Infinity Term Loan Note]
PROMISSORY NOTE
$_______________ _________ __, 1994
New York, New York
FOR VALUE RECEIVED, INFINITY BROADCASTING CORPORATION, a
Delaware corporation (the "Company"), hereby promises to pay to
_______
__________________ (the "Bank"), for account of its respective
____
Applicable Lending Offices provided for by the Credit Agreement
referred to below, at the principal office of The Chase Manhattan Bank
(National Association) at 1 Chase Manhattan Plaza, New York, New York
10081, the principal sum of _____________ Dollars (or such lesser
amount as shall equal the aggregate unpaid principal amount of the
Infinity Term Loans made by the Bank to the Company under the Credit
Agreement), in lawful money of the United States of America and in
immediately available funds, on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Infinity Term Loan, at such office, in
like money and funds, for the period(s) specified for such Infinity
Term Loan in the Credit Agreement, at the rates per annum and on the
dates provided in the Credit Agreement.
The date, amount, type, interest rate, and duration of
Interest Period (if applicable) of each Infinity Term Loan made by the
Bank to the Company, and each payment made on account of the principal
thereof, shall be recorded by the Bank on its books and, prior to any
transfer of this Note, endorsed by the Bank on the schedule attached
hereto or any continuation thereof.
This Note is one of the Infinity Term Loan Notes referred to
in the Amended and Restated Credit Agreement (as amended, modified and
supplemented and in effect from time to time, the "Credit Agreement")
________________
dated as of June 7, 1994 between the Company, the lenders party
thereto, The Chase Manhattan Bank (National Association), as
Administrative Agent, Bank of Montreal, The Bank of New York and
Chemical Bank, as Co-Agents, and Chemical Bank, as Collateral Agent,
and evidences Infinity Term Loans made by the Bank thereunder.
Capitalized terms used in this Note have the respective meanings
assigned to them in the Credit Agreement.
<PAGE>
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for
prepayments of Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit
Agreement, this Note may not be assigned by the Bank to any other
Person.
The obligations of the Company under this Note constitute
"Senior Indebtedness" and "Significant Senior Indebtedness" as defined
in and for all purposes of the Subordinated Indenture.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
INFINITY BROADCASTING CORPORATION
By _________________________
Name:
Title:
2
<PAGE>
Notes
_____
SCHEDULE OF INFINITY TERM LOANS
This Note evidences Infinity Term Loans made, Continued or
Converted under the within-described Credit Agreement to the Company,
on the dates, in the principal amounts, of the types, bearing interest
at the rates, and having Interest Periods (if applicable) of the
durations set forth below, subject to the payments, Continuations,
Conversions and prepayments of principal set forth below:
Amount
Date Prin- Paid,
Made, cipal Duration Prepaid, Unpaid
Continued Amount Type of Continued Prin-
or of of Interest Interest or cipal Notation
Converted Loan Loan Rate Period Converted Amount Made by
_________ ______ ____ ________ ________ _________ ______ ________
Notes
_____
<PAGE>
EXHIBIT A-2
[Form of Working Capital Loan Note]
PROMISSORY NOTE
$_______________ _________ __, 19__
New York, New York
FOR VALUE RECEIVED, INFINITY BROADCASTING CORPORATION, a
Delaware corporation (the "Company"), hereby promises to pay to
_______
__________________ (the "Bank"), for account of its respective
____
Applicable Lending Offices provided for by the Credit Agreement
referred to below, at the principal office of The Chase Manhattan
Bank (National Association) at 1 Chase Manhattan Plaza, New York,
New York 10081, the principal sum of _______________ Dollars (or
such lesser amount as shall equal the aggregate unpaid principal
amount of the Working Capital Loans made by the Bank to the
Company under the Credit Agreement), in lawful money of the
United States of America and in immediately available funds, on
the dates and in the principal amounts provided in the Credit
Agreement, and to pay interest on the unpaid principal amount of
each such Working Capital Loan, at such office, in like money and
funds, for the period(s) specified for such Working Capital Loan
in the Credit Agreement, at the rates per annum and on the dates
provided in the Credit Agreement.
The date, amount, type, interest rate, and duration of
Interest Period (if applicable) of each Working Capital Loan made
by the Bank to the Company, and each payment made on account of
the principal thereof, shall be recorded by the Bank on its books
and, prior to any transfer of this Note, endorsed by the Bank on
the schedule attached hereto or any continuation thereof.
This Note is one of the Working Capital Loan Notes referred
to in the Credit Agreement (as amended, modified and supplemented
and in effect from time to time, the "Credit Agreement") dated as
________________
of June 7, 1994 between the Company, the lenders party thereto,
The Chase Manhattan Bank (National Association), as
Administrative Agent, Bank of Montreal, The Bank of New York and
Chemical Bank, as Co-Agents, and Chemical Bank, as Collateral
Agent, and evidences Working Capital Loans made by the Bank
thereunder. Capitalized terms used in this Note have the
respective meanings assigned to them in the Credit Agreement.
Notes
_____
<PAGE>
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and
for prepayments of Loans upon the terms and conditions specified
therein.
Except as permitted by Section 11.06 of the Credit
Agreement, this Note may not be assigned by the Bank to any other
Person.
The obligations of the Company under this Note constitute
"Senior Indebtedness" and "Significant Senior Indebtedness" as
defined in and for all purposes of the Subordinated Indenture.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
INFINITY BROADCASTING CORPORATION
By _________________________
Name:
Title:
2
<PAGE>
Notes
_____
SCHEDULE OF WORKING CAPITAL LOANS
This Note evidences Working Capital Loans made, Continued or
Converted under the within-described Credit Agreement to the
Company, on the dates, in the principal amounts, of the types,
bearing interest at the rates, and having Interest Periods (if
applicable) of the durations set forth below, subject to the
payments, Continuations, Conversions and prepayments of principal
set forth below:
Amount
Date Prin- Paid,
Made, cipal Duration Prepaid, Unpaid
Continued Amount Type of Continued Prin-
or of of Interest Interest or cipal Notation
Converted Loan Loan Rate Period Converted Amount Made by
_________ ______ ____ ________ ________ _________ ______ ________
<PAGE>
Notes
_____
EXHIBIT A-3
[Form of Infinity Acquisition Loan Note]
PROMISSORY NOTE
$_______________ _________ __, 19__
New York, New York
FOR VALUE RECEIVED, INFINITY BROADCASTING CORPORATION, a
Delaware corporation (the "Company"), hereby promises to pay to
_______
__________________ (the "Bank"), for account of its respective
____
Applicable Lending Offices provided for by the Credit Agreement
referred to below, at the principal office of The Chase Manhattan
Bank (National Association) at 1 Chase Manhattan Plaza, New York,
New York 10081, the principal sum of _______________ Dollars (or
such lesser amount as shall equal the aggregate unpaid principal
amount of the Infinity Acquisition Loans made by the Bank to the
Company under the Credit Agreement), in lawful money of the
United States of America and in immediately available funds, on
the dates and in the principal amounts provided in the Credit
Agreement, and to pay interest on the unpaid principal amount of
each such Infinity Acquisition Loan, at such office, in like
money and funds, for the period(s) specified for such Infinity
Acquisition Loan in the Credit Agreement, at the rates per annum
and on the dates provided in the Credit Agreement.
The date, amount, type, interest rate, and duration of
Interest Period (if applicable) of each Infinity Acquisition Loan
made by the Bank to the Company, and each assignment or payment
made on account of the principal thereof, shall be recorded by
the Bank on its books and, prior to any transfer of this Note,
endorsed by the Bank on the schedule attached hereto or any
continuation thereof.
This Note is one of the Infinity Acquisition Loan Notes
referred to in the Credit Agreement (as amended, modified and
supplemented and in effect from time to time, the "Credit
______
Agreement") dated as of June 7, 1994 between the Company, the
_________
lenders party thereto, The Chase Manhattan Bank (National
Association), as Administrative Agent, Bank of Montreal, The Bank
of New York and Chemical Bank, as Co-Agents, and Chemical Bank,
as Collateral Agent, and evidences Infinity Acquisition Loans
made by the Bank thereunder. Capitalized terms used in this Note
<PAGE>
Notes
_____
have the respective meanings assigned to them in the Credit
Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and
for prepayments of Loans upon the terms and conditions specified
therein.
Except as permitted by Section 11.06 of the Credit
Agreement, this Note may not be assigned by the Bank to any other
Person.
The obligations of the Company under this Note constitute
"Senior Indebtedness" and "Significant Senior Indebtedness" as
defined in and for all purposes of the Subordinated Indenture.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
INFINITY BROADCASTING CORPORATION
By _________________________
Name:
Title:
2
<PAGE>
Notes
_____
SCHEDULE OF INFINITY ACQUISITION LOANS
This Note evidences Infinity Acquisition Loans made,
Continued or Converted under the within-described Credit
Agreement to the Company, on the dates, in the principal amounts,
of the types, bearing interest at the rates, and having Interest
Periods (if applicable) of the durations set forth below, subject
to the assignments, payments, Continuations, Conversions and
prepayments of principal set forth below:
Amount
Date Assigned,
Made, Prin- Paid,
Assigned, cipal Duration Prepaid, Unpaid
Continued Amount Type of Continued Prin-
or of of Interest Interest or cipal Notation
Converted Loan Loan Rate Period Converted Amount Made by
_________ ______ ____ ________ ________ _________ ______ ________
<PAGE>
Notes
_____
EXHIBIT A-4
[Form of Subsidiary Loan Note]
PROMISSORY NOTE
$_______________ _________ __, 19__
New York, New York
FOR VALUE RECEIVED, [NAME OF SUBSIDIARY BORROWER], a
___________ corporation (the "Company"), hereby promises to pay
_______
to __________________ (the "Bank"), for account of its respective
____
Applicable Lending Offices provided for by the Loan Agreement
referred to below, at the principal office of The Chase Manhattan
Bank (National Association) at 1 Chase Manhattan Plaza, New York,
New York 10081, the principal sum of _______________ Dollars (or
such lesser amount as shall equal the aggregate unpaid principal
amount of the Loans made by the Bank to the Company under the
Loan Agreement), in lawful money of the United States of America
and in immediately available funds, on the dates and in the
principal amounts provided in the Loan Agreement, and to pay
interest on the unpaid principal amount of each such Loan, at
such office, in like money and funds, for the period(s) specified
for such Loan in the Loan Agreement, at the rates per annum and
on the dates provided in the Loan Agreement.
The date, amount, type, interest rate, and duration of
Interest Period (if applicable) of each Loan [made by the Bank
to/assumed by] the Company, and each payment made on account of
the principal thereof, shall be recorded by the Bank on its books
and, prior to any transfer of this Note, endorsed by the Bank on
the schedule attached hereto or any continuation thereof.
This Note is one of the Notes referred to in the Loan
Agreement (as amended, modified and supplemented and in effect
from time to time, the "Loan Agreement") dated as of _________,
______________
19__ between the Company and The Chase Manhattan Bank (National
Association), as Administrative Agent, and evidences Loans made
by the Bank thereunder. Capitalized terms used in this Note have
the respective meanings assigned to them in the Loan Agreement.
The Loan Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and
for prepayments of Loans upon the terms and conditions specified
therein.
<PAGE>
Notes
_____
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
[NAME OF SUBSIDIARY BORROWER]
By _________________________
Name:
Title:
2
<PAGE>
Notes
_____
SCHEDULE OF LOANS
This Note evidences Loans assumed, made, Continued or
Converted as contemplated by or under the within-described Loan
Agreement to the Company, on the dates, in the principal amounts,
of the types, bearing interest at the rates, and having Interest
Periods (if applicable) of the durations set forth below, subject
to the payments, Continuations, Conversions and prepayments of
principal set forth below:
Date Amount
Assumed Prin- Paid,
Made, cipal Duration Prepaid, Unpaid
Continued Amount Type of Continued Prin-
or of of Interest Interest or cipal Notation
Converted Loan Loan Rate Period Converted Amount Made by
_________ ______ ____ ________ ________ _________ ______ ________
Notes
_____
<PAGE>
EXHIBIT B
[Form of Subsidiary Loan Agreement]
[Delivered at Closing]
<PAGE>
EXHIBIT C
[Form of Guarantee Agreement]
[Delivered at Closing]
<PAGE>
EXHIBIT D
[Form of Security Agreement]
[Delivered at Closing]
<PAGE>
EXHIBIT E-1
[Form of Opinion of Counsel to the Obligors]
[Delivered at Closing]
<PAGE>
EXHIBIT E-2
[Form of Opinion of FCC Counsel to the Obligors]
[Delivered at Closing]
<PAGE>
EXHIBIT F
[Form of Opinion of Special New York Counsel to Chase]
[Delivered at Closing]
<PAGE>
EXHIBIT G
[Form of Confidentiality Agreement]
CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Amended and Restated Credit Agreement dated as of
June 7, 1994, between Infinity Broadcasting
Corporation; the lenders party thereto; The Chase
Manhattan Bank (National Association), as
Administrative Agent; Bank of Montreal, The Bank
of New York and Chemical Bank, as Co-Agents;
Chemical Bank, as Collateral Agent.
Dear ____________:
As a Bank party to the above-referenced Amended and Restated
Credit Agreement (the "Credit Agreement"), we have agreed with
________________
Infinity Broadcasting Corporation (the "Company") pursuant to
_______
Section 11.12 of the Credit Agreement to use reasonable
precautions to keep confidential, except as otherwise provided
therein, all non-public information identified by the Company as
being confidential at the time the same is delivered to us
pursuant to the Credit Agreement. Terms defined in the Credit
Agreement are used herein as defined therein.
As provided in said Section 11.12, we are permitted to
provide you, as a prospective [holder of a participation in the
[holder of a participation in the
Loans (as defined in the Credit Agreement)][assignee Bank], with
certain of such non-public information subject to the execution
and delivery by you, prior to receiving such non-public
information, of a Confidentiality Agreement in this form. Such
information will not be made available to you until your
execution and return to us of this Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you agree
(on behalf of yourself and each of your affiliates, directors,
officers, employees and representatives) that (A) such
information will not be used by you except in connection with the
proposed [participation][assignment] mentioned above and (B) you
shall use reasonable precautions, in accordance with your
customary procedures for handling confidential information and in
<PAGE>
accordance with safe and sound banking practices, to keep such
information confidential, 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 your counsel or to counsel for any of the Banks or any of
the Agents, (iii) at their request, to bank examiners or other
regulators having analogous responsibilities, (iv) to auditors or
accountants, (v) to the Agents or any other Bank (or to Chase
Securities, Inc.), (vi) in connection with any litigation arising
under or in connection with the transactions contemplated by the
Credit Agreement or any of the other Basic Documents (as defined
in the Credit Agreement) to which you or any one or more of the
Banks or the Agents are a party, (vii) to a subsidiary or
affiliate of yours as provided in Section 11.12(a) of the Credit
Agreement, or (viii) to any assignee or participant (or
prospective assignee or participant) so long as such assignee or
participant (or prospective assignee or participant) first
executes and delivers to you a Confidentiality Agreement
substantially in the form hereof provided, that in no event shall
you be obligated to return any materials furnished to you
pursuant to this Confidentiality Agreement.
Would you please indicate your agreement to the foregoing by
signing at the place provided below the enclosed copy of this
Confidentiality Agreement.
Very truly yours,
[Insert Name of Bank]
By _________________________
The foregoing is agreed to
as of the date of this letter.
[Insert name of prospective
participant or assignee]
By _________________________]
2
<PAGE>
Confidentiality Agreement
_________________________
3
<PAGE>
Confidentiality Agreement
_________________________
EXHIBIT H
[Form of Borrowing Notice]
[Delivered at Closing]
<PAGE>
EXHIBIT I
[Form of Tax Allocation Agreement]
[Delivered at Closing]
<PAGE>
EXHIBIT J
[Form of Assignment Agreement]
[Delivered at Closing]
<PAGE>
************************************************************
INFINITY BROADCASTING CORPORATION
_____________________________
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 7, 1994
______________________________
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
BANK OF MONTREAL,
THE BANK OF NEW YORK,
and
CHEMICAL BANK,
as Co-Agents
CHEMICAL BANK,
as Collateral Agent
************************************************************
<PAGE>
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to
which it is attached but is inserted for convenience only.
Page
____
Section 1. Definitions; Accounting Matters and
Interpretation of Provisions . . . . . . . . . . 2
1.1. Certain Defined Terms . . . . . . . . . . . 2
1.2. Accounting Terms and
Determinations . . . . . . . . . . . . . 37
1.3. Types and Series of Loans and
Commitments . . . . . . . . . . . . . . 39
Section 2. Commitments . . . . . . . . . . . . . . . . . . . 39
2.1. Loans . . . . . . . . . . . . . . . . . . . 39
2.2. Borrowings . . . . . . . . . . . . . . . . 42
2.3. Changes of Commitments . . . . . . . . . . 43
2.4. Certain Fees . . . . . . . . . . . . . . . 43
2.5. Lending Offices . . . . . . . . . . . . . . 44
2.6. Several Obligations; Remedies
Independent . . . . . . . . . . . . . . 44
2.7. Notes . . . . . . . . . . . . . . . . . . . 44
2.8. Conversions or Continuations of
Loans . . . . . . . . . . . . . . . . . 46
Section 3. Payments of Principal and Interest . . . . . . . 47
3.1. Repayment of Loans . . . . . . . . . . . . 47
3.2. Interest . . . . . . . . . . . . . . . . . 49
3.3. Optional Prepayments . . . . . . . . . . . 50
3.4. Mandatory Prepayments . . . . . . . . . . . 51
Section 4. Payments; Pro Rata Treatment;
Computations; Etc. . . . . . . . . . . . . . . . 55
4.1. Payments . . . . . . . . . . . . . . . . . 55
4.2. Pro Rata Treatment . . . . . . . . . . . . 56
4.3. Computations . . . . . . . . . . . . . . . 58
4.4. Minimum Amounts . . . . . . . . . . . . . . 58
4.5. Certain Notices . . . . . . . . . . . . . . 58
4.6. Non-Receipt of Funds by the
Administrative Agent . . . . . . . . . . 60
Section 5. Yield Protection, Etc. . . . . . . . . . . . . . 61
5.1. Additional Costs . . . . . . . . . . . . . 61
5.2. Limitation on Eurodollar Loans . . . . . . 63
5.3. Illegality . . . . . . . . . . . . . . . . 64
<PAGE>
Page
____
5.4. Treatment of Affected Loans . . . . . . . . 64
5.5. Compensation . . . . . . . . . . . . . . . 65
5.6. U.S. Taxes . . . . . . . . . . . . . . . . 66
5.7. Replacement or Prepayment of
Certain Banks . . . . . . . . . . . . . 69
Section 6. Conditions Precedent . . . . . . . . . . . . . . 70
6.1. Effective Date and Conversion of
Existing Loans . . . . . . . . . . . . . 70
6.2. Subsidiary Acquisition Loans . . . . . . . 73
6.3. Acquisition Loans . . . . . . . . . . . . . 74
6.4. Initial and Subsequent Loans . . . . . . . 74
Section 7. Representations and Warranties . . . . . . . . . 74
7.1. Corporate Existence . . . . . . . . . . . . 75
7.2. Financial Condition . . . . . . . . . . . . 75
7.3. Litigation . . . . . . . . . . . . . . . . 76
7.4. No Breach . . . . . . . . . . . . . . . . . 76
7.5. Action . . . . . . . . . . . . . . . . . . 76
7.6. Approvals . . . . . . . . . . . . . . . . . 77
7.7. Use of Loans . . . . . . . . . . . . . . . 77
7.8. ERISA . . . . . . . . . . . . . . . . . . . 77
7.9. Taxes . . . . . . . . . . . . . . . . . . . 77
7.10. Investment Company Act . . . . . . . . . . 78
7.11. Public Utility Holding Company Act . . . . 78
7.12. Credit Agreements . . . . . . . . . . . . . 78
7.13. Environmental Laws . . . . . . . . . . . . 78
7.14. Subsidiaries, Etc. . . . . . . . . . . . . 79
7.15. Capitalization . . . . . . . . . . . . . . 79
7.16. Assets of the Company . . . . . . . . . . . 80
7.17. Agreements . . . . . . . . . . . . . . . . 80
7.18. Solvency . . . . . . . . . . . . . . . . . 80
7.19. Security Agreement . . . . . . . . . . . . 81
7.20. Senior Indebtedness . . . . . . . . . . . . 81
Section 8. Covenants of the Company . . . . . . . . . . . . 81
8.1. Financial Statements . . . . . . . . . . . 81
8.2. Litigation . . . . . . . . . . . . . . . . 87
8.3. Existence, Etc. . . . . . . . . . . . . . . 87
8.4. Insurance . . . . . . . . . . . . . . . . . 87
8.5. Capital Expenditures . . . . . . . . . . . 87
8.6. Liens . . . . . . . . . . . . . . . . . . . 88
8.7. Indebtedness . . . . . . . . . . . . . . . 88
8.8. Investments and Joint Ventures . . . . . . 89
8.9. Restricted Payments . . . . . . . . . . . . 90
8.10. Debt Ratios . . . . . . . . . . . . . . . 92
2
<PAGE>
Page
____
8.11. Interest Coverage Ratio; Total Pro
Forma Debt Service Coverage
Ratio . . . . . . . . . . . . . . . . . 92
8.12. Prohibition of Fundamental
Changes . . . . . . . . . . . . . . . . 93
8.13. Interest Rate Protection
Agreements . . . . . . . . . . . . . . . 95
8.14. Sale or Discount of Receivables . . . . . 97
8.15. Lines of Business . . . . . . . . . . . . 97
8.16. Transactions With Affiliates . . . . . . . 97
8.17. Issuance of Capital Stock . . . . . . . . 98
8.18. Use of Proceeds . . . . . . . . . . . . . 98
8.19. Certain Obligations Respecting
Restricted Subsidiaries . . . . . . . . 99
8.20. Additional Subsidiary Guarantors . . . . . 99
8.21. Modifications of Certain
Documents; Subordinated Debt . . . . . . 100
8.22. Unrestricted Subsidiaries;
Corporate Separateness. . . . . . . . . 101
Section 9. Events of Default . . . . . . . . . . . . . . . . 102
Section 10. The Agents . . . . . . . . . . . . . . . . . . . 107
10.1. Appointment, Powers and
Immunities . . . . . . . . . . . . . . . 107
10.2. Reliance by Each Agent . . . . . . . . . . 109
10.3. Defaults . . . . . . . . . . . . . . . . . 110
10.4. Rights as a Bank . . . . . . . . . . . . . 110
10.5. Indemnification . . . . . . . . . . . . . 111
10.6. Non-Reliance on Agents and Other
Banks . . . . . . . . . . . . . . . . . 111
10.7. Failure to Act . . . . . . . . . . . . . . 112
10.8. Resignation or Removal of Agents . . . . . 112
10.9. Collateral Sub-Agents . . . . . . . . . . 113
Section 11. Miscellaneous . . . . . . . . . . . . . . . . . . 113
11.1. Waiver . . . . . . . . . . . . . . . . . . 113
11.2. Notices . . . . . . . . . . . . . . . . . 113
11.3. Expenses, Etc. . . . . . . . . . . . . . . 113
11.4. Amendments, Etc. . . . . . . . . . . . . . 114
11.5. Successors and Assigns . . . . . . . . . . 118
11.6. Bank Assignments and
Participations . . . . . . . . . . . . . 118
11.7. Survival . . . . . . . . . . . . . . . . . 120
11.8. Captions . . . . . . . . . . . . . . . . . 121
11.9. Counterparts . . . . . . . . . . . . . . . 121
3
<PAGE>
Page
____
11.10. Governing Law; Submission to
Jurisdiction . . . . . . . . . . . . . . 121
11.11. Waiver of Jury Trial . . . . . . . . . . . 121
11.12. Treatment of Certain Information;
Confidentiality . . . . . . . . . . . . 121
11.13. Senior Indebtedness . . . . . . . . . . . 122
11.14. Obligations of Banks under
Subsidiary Loan Agreements . . . . . . . 122
SCHEDULE I - Banks, Loans and Commitments
SCHEDULE II - Permitted Liens
SCHEDULE III - Material Agreements
SCHEDULE IV - Subsidiaries and Investments
SCHEDULE V - Litigation
SCHEDULE VI - Conflicts with Certain Agreements
SCHEDULE VII - Taxes
EXHIBIT A-1 - Form of Infinity Term Loan Note
EXHIBIT A-2 - Form of Working Capital Loan Note
EXHIBIT A-3 - Form of Infinity Acquisition Loan Note
EXHIBIT A-4 - Form of Subsidiary Loan Note
EXHIBIT B - Form of Subsidiary Loan Agreement
EXHIBIT C - Form of Guarantee Agreement
EXHIBIT D - Form of Security Agreement
EXHIBIT E-1 - Form of Opinion of Counsel to the Obligors
EXHIBIT E-2 - Form of Opinion of FCC Counsel to the Obligors
EXHIBIT F - Form of Opinion of Special New York Counsel to
Chase
EXHIBIT G - Form of Confidentiality Agreement
EXHIBIT H - Form of Borrowing Notice
EXHIBIT I - Form of Tax Allocation Agreement
EXHIBIT J - Form of Assignment Agreement
<PAGE>
4
<PAGE>
SECURITY AGREEMENT
AMENDED AND RESTATED SECURITY AGREEMENT dated as of
June 7, 1994 between INFINITY BROADCASTING CORPORATION, a
corporation duly organized and validly existing under the laws of
the State of Delaware (together with its successors and assigns,
the "Company"), each of the Subsidiaries of the Company
_______
identified under the caption "SUBSIDIARIES" on the signature
pages hereof (each, a "Subsidiary" and, collectively, the
__________
"Subsidiaries" and, together with the Company, each an "Obligor"
____________ _______
and, collectively, the "Obligors") and Chemical Bank, as
________
collateral agent for the Banks (as defined below) party to the
Credit Agreement referred to below (in such capacity, together
with its successors in such capacity, the "Collateral Agent").
________________
The Company, certain of its subsidiaries, certain
lenders (the "Banks"), The Chase Manhattan Bank (National
_____
Association), as administrative agent for the Banks (in such
capacity, together with its successors in such capacity, the
"Administrative Agent"), Bank of Montreal, The Bank of New York
____________________
and Chemical Bank, as co-agents for the Banks (in such capacity,
together with their respective successors in such capacity, the
"Co-Agents)" and the Collateral Agent are parties to a Credit
_________
Agreement dated as of September 22, 1992 (as modified and
supplemented and in effect on the date hereof, the "Existing
________
Credit Agreement"), providing, subject to the terms and
________________
conditions thereof, for extensions of credit to be made by the
Banks to the Company and certain subsidiaries of the Company in
an aggregate principal amount not exceeding $320,000,000.
The Company, the other Obligors and the Collateral
Agent are also parties to a Security Agreement dated as of
September 22, 1992 (as modified and supplemented and in effect on
the date hereof, the "Existing Security Agreement") pursuant to
___________________________
which the Obligors granted a lien on their respective properties
as collateral security for the extensions of credit under the
Existing Credit Agreement.
The Company, the Banks and the Agents have entered into
an Amended and Restated Credit Agreement dated as of June 7, 1994
(as modified and supplemented and in effect from time to time,
the "Credit Agreement") providing for the amendment and
________________
restatement of the Existing Credit Agreement to (among other
things): (i) modify the amortization of the loans thereunder,
(ii) increase the amount of the extensions of credit that may be
made thereunder and (iii) provide that extensions of credit be
made available to certain subsidiaries of the Company.
<PAGE>
It is a condition precedent to the effectiveness of the
amendment and restatement of the Existing Credit Agreement that
the Existing Security Agreement also be amended and restated.
To induce the Banks to amend and restate the Existing
Credit Agreement and to extend credit thereunder and, as so
amended and restated, to extend credit to the Subsidiary
Borrowers under the Subsidiary Loan Agreements as provided in the
Credit Agreement, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, each
Obligor has agreed to amend and restate the Existing Security
Agreement as provided herein. Accordingly, effective as of the
Effective Date (as defined in the Credit Agreement), the parties
hereto hereby agree that the Existing Security Agreement shall be
amended and restated to read as set forth in this Agreement:
SECTION 1. Definitions. Except as otherwise provided
___________
herein, terms defined in the Credit Agreement are used herein as
defined therein. In addition, as used herein the following terms
shall have the following meanings (all terms defined in this
Section 1 or in other provisions of this Agreement in the
singular to have the same meanings when used in the plural and
vice versa):
____ _____
"Agreement" shall mean this Amended and Restated
_________
Security Agreement, as the same shall be modified and
supplemented and in effect from time to time, and 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
unless otherwise specified.
"Borrower" shall mean the Company and each of HBC,
________
SBC, Infinity of Boston, Infinity of California and each other
Restricted Subsidiary to which Subsidiary Acquisition Loans are
made or which assumes Acquisition Loans of the Company under the
Credit Agreement.
"Collateral" shall have the meaning given to such term
__________
in Section 3 hereof and shall include the Stock Collateral.
"Interest Protection Obligations" shall mean the
_______________________________
obligations of the Company to each Swap Provider in respect of
one or more Interest Rate Protection Agreements entered into by
the Company and such Swap Provider pursuant to Section 8.13 of
the Credit Agreement.
2
<PAGE>
"Loan Documents" shall mean, collectively, the Credit
______________
Agreement and each Subsidiary Loan Agreement.
"Pledged Debt" shall have the meaning given to such
____________
term in Section 3(d)(viii) hereof.
"Secured Obligations" shall mean: (a) with respect to
___________________
the Company, (i) the obligations of the Company to pay the
principal of and interest (including, without limitation,
interest accruing after the commencement of a case or proceeding
of the type referred to in Section 9(f) or (g) of the Credit
Agreement with respect to the Company, whether or not allowed as
a claim in any such case or proceeding) on the Loans made to the
Company and the Notes of the Company and all other amounts owing
by the Company under the Credit Agreement, such Notes, the
Guarantee Agreement, this Agreement and each other Basic Document
to which the Company is a party and (ii) all Interest Protection
Obligations and (b) with respect to each Obligor other than the
Company, the obligations of such Obligor to pay all amounts
(including, without limitation, if such Obligor is a Borrower,
interest accruing on the Loans of such Borrower after the
commencement of a case or proceeding of the type referred to in
Section 9(d) or (e) of the Subsidiary Loan Agreement to which
such Borrower is a party with respect to such Borrower, whether
or not allowed as a claim in any such case or proceeding) owing
by such Obligor under the Basic Documents to which such Obligor
is a party (including, without limitation, this Agreement, the
Guarantee Agreement and, if such Obligor is a Borrower, the Loan
Document to which such Obligor is a party and the Notes of such
Obligor).
"Secured Parties" shall mean, collectively, the Agents,
_______________
the Banks and the Swap Providers and their respective successors
and assigns.
"Stock Collateral" shall have the meaning given to such
________________
term in Section 3(a) hereof.
"Swap Provider" shall mean a Bank in its capacity as a
_____________
party to an Interest Rate Protection Agreement between such Bank
and the Company.
"Uniform Commercial Code" shall mean the Uniform
_______________________
Commercial Code as in effect from time to time in the State of
New York.
3
<PAGE>
SECTION 2. Representations and Warranties.
______________________________
2.1. Stock Collateral. Each of the Obligors
________________
represents and warrants to each of the Secured Parties that
(i) the shares of capital stock described opposite its name in
the column labeled "Issuer" on Schedule I hereto are duly
authorized, validly issued, fully paid and nonassessable,
(ii) the certificates evidencing such shares of capital stock of
such Issuer constitute all of the certificates evidencing the
type and number of shares so listed and (iii) such shares of
capital stock constitute all (or, in the case of Hit Radio, Inc.,
with respect to SBC, 80% and, with respect to the Company, 20%)
of the issued and outstanding shares of capital stock of each
class of such Issuer. Each of the Obligors further represents
and warrants to each of the Secured Parties that, if any Issuer
that is a Subsidiary of such Obligor shall issue any additional
shares of capital stock to such Obligor, all such additional
shares will, when issued, be duly authorized, validly existing,
fully-paid and non-assessable and, together with the shares of
capital stock described opposite such Issuer's name on Schedule I
hereto, will constitute all (or, in the case of Hit Radio, Inc.,
at least 80%) of the issued and outstanding shares of capital
stock of each class of such Issuer.
SECTION 3. Collateral. As collateral security for the
__________
prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of its Secured Obligations, each
Obligor hereby pledges and grants to the Collateral Agent a
security interest in and to, for the benefit of the Secured
Parties, all of such Obligor's right, title and interest in, to
and under the following property, whether now owned or hereafter
acquired by such Obligor and whether now existing or hereafter
coming into existence (all being collectively referred to herein
as "Collateral"):
__________
(a) all shares of capital stock of each "Issuer"
listed on Schedule I hereto as being owned by such Obligor
and all additional shares of each class of capital stock of
any Restricted Subsidiary acquired by such Obligor from time
to time, together with the certificates evidencing all such
shares accompanied by undated instruments of transfer or
assignment duly executed in blank (such securities,
certificates and instruments, together with any shares of
capital stock, securities, warrants, rights or options and
related certificates and instruments referred to in clauses
(b) and (c) below, being collectively referred to herein as
the "Stock Collateral");
________________
4
<PAGE>
(b) all shares, securities, money or property
representing a dividend (other than any dividend which such
Obligor is entitled to receive and retain pursuant to the
first sentence of Section 4.04(c) hereof) or other
distribution or return of capital upon or in respect of any
of the Stock Collateral or resulting from a conversion,
split-up, revision, reclassification or other like change of
the Stock Collateral or otherwise received in exchange
therefor, and any warrants, rights or options issued to the
holders of, or otherwise in respect of, the Stock
Collateral, together with, in the case of such shares,
securities, warrants, rights or options, the certificates
evidencing all such shares, securities, warrants, rights or
options accompanied by undated instruments of transfer or
assignment duly executed in blank;
(c) without affecting the obligations of the Company
under any provision of the Credit Agreement prohibiting such
action, in the event of any consolidation or merger in which
any Restricted Subsidiary (the shares of capital stock of
which constitute Stock Collateral) is not the surviving
corporation, all shares of each class of the capital stock
of the successor corporation formed by or resulting from
such consolidation or merger, together with the certificates
evidencing all such shares accompanied by undated
instruments of transfer or assignment duly executed in
blank;
(d) all other personal property and fixtures, wherever
located, of every kind and description, tangible and
intangible, absolute or contingent, legal or equitable,
including without limitation the following: (except for any
such property described in subclauses (v), (vi), (xi), (xii)
and (xiii) below, other than (x) a general intangible for
moneys due or to become due, to the extent the grant of a
security interest therein is prohibited by law or under the
terms of any instrument or other agreement relating thereto
and (y) ownership interests (in the form of capital stock or
otherwise) in Unrestricted Subsidiaries):
(i) all goods, equipment, machinery, vehicles,
merchandise, furniture, furnishings, fixtures, tools
and supplies, including without limitation all wires,
appliances, towers, antennae, fixtures, equipment and
other tangible personal property used or useful in
connection with the operation of such Obligor's radio
or other communications businesses;
5
<PAGE>
(ii) all inventory of such Obligor including, but
not limited to, all merchandise, raw materials, parts,
supplies, work in process, and finished products
intended for sale, of every kind and description now or
at any time hereafter owned by or in the custody or
possession, actual or constructive, of such Obligor,
including such inventory as is temporarily out of such
Obligor's custody or possession and including any
returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or
disposition of any of the foregoing, including, among
other things, but not limited to, raw materials and
finished products and including all other classes of
merchandise, materials, parts, supplies, work in
process, inventories and finished products intended for
sale by such Obligor including inventory temporarily
removed from its customary location;
(iii) all FCC Licenses, whether now or hereafter
granted to such Obligor, including without limitation
each of the FCC Licenses listed on Schedule III hereto,
to the extent the security interest therein granted or
purported to be granted by such Obligor under this
Agreement may be validly granted;
(iv) all other Communications Franchises, to the
extent the security interest therein granted or
purported to be granted by such Obligor under this
Agreement may be validly granted;
(v) all accounts and other rights to receive the
payment of money, including without limitation accounts
and notes receivable and rights to receive the payment
of money for goods sold or leased or for services
rendered under present or future contracts, whether or
not earned by performance;
(vi) each contract and other agreement relating to
the performance of services or for the sale or other
disposition of goods, equipment or any other personal
property of such Obligor;
(vii) all documents of title or other receipts
covering, evidencing or representing goods, inventory,
equipment or any personal property of such Obligor;
(viii) all rights and claims of the Company against
any Subsidiary or of any Restricted Subsidiary against
6
<PAGE>
the Company or another Subsidiary, whether arising out
of advances made by the Company or any Restricted
Subsidiary, as the case may be, or otherwise, including
without limitation all rights and claims in respect of
any Indebtedness owing from time to time by (x) any
Subsidiary to the Company or any Restricted Subsidiary;
(y) any Restricted Subsidiary to the Company or any
other Restricted Subsidiary or (z) any Unrestricted
Subsidiary to the Company (all such Indebtedness being
herein collectively called the "Pledged Debt") and any
____________
and all promissory notes or other instruments
evidencing or providing for such Pledged Debt, and all
principal of, interest on and other amounts due and to
become due in respect of any of the Pledged Debt;
(ix) all patents and patent applications,
including without limitation the inventions and
improvements described and claimed therein, together
with (i) the reissues, divisions, continuations,
renewals, extensions and continuations-in-part thereof,
(ii) all income, royalties, damages and payments now or
hereafter due and/or payable under and with respect
thereto, including without limitation damages and
payments for past or future infringements thereof,
(iii) the right to sue for past, present and future
infringements thereof and (iv) all rights corresponding
thereto throughout the world;
(x) all such Obligor's trademarks and trademark
applications, including without limitation any
(i) trademark or trademark application that, at any
time on or after the date hereof is registered and
received by or on behalf of such Obligor with the
United States Patent and Trademark Office or maintained
by or on behalf of such Obligor with the United States
Patent and Trademark Office as its valid, effective
and existing trademark and trademark application,
(ii) trademark registration number under which any such
trademark and trademark application is registered with
the United States Patent and Trademark Office and
(iii) product lines and goodwill associated therewith;
(xi) all inventions, processes, production
methods, proprietary information, know-how and trade
secrets used or useful in the businesses of such
Obligor; all trade names and service marks (including
without limitation the trade names and service marks
listed in Schedule IV hereto), logos, copyrights and
7
<PAGE>
the like owned or used by such Obligor and used or
useful in its businesses and goodwill relating to the
same; all licenses or other agreements granted to such
Obligor with respect to any of the foregoing, in each
case whether now or hereafter owned or used; all
information, customer lists, identification of
suppliers, data, plans, blueprints, specifications,
designs, drawings, recorded knowledge, surveys,
engineering reports, test reports, manuals, materials,
standards, processing standards, performance standards,
catalogs, computer and automatic machinery software and
programs, and the like pertaining to operations by such
Obligor which pertain to any of the businesses of such
Obligor; all field repair data, sales data and other
information relating to sales or service of products
now or hereafter manufactured and which pertain to any
of the businesses of such Obligor; all accounting
information which pertains to any of the businesses of
such Obligor and all media in which or on which any of
the information or knowledge or data or records which
pertain to any of the businesses of such Obligor may be
recorded or stored and all computer programs used for
the compilation or printout of such information,
knowledge, records or data; all licenses, consents,
permits, variances, certifications and approvals of
governmental agencies now or hereafter held by such
Obligor pertaining to operations now or hereafter
conducted by such Obligor which pertain to any of its
businesses (other than FCC Licenses and Communications
Franchises); and all causes of action, claims and
warranties now or hereafter owned or acquired by such
Obligor;
(xii) to the extent not specifically described in
any other provision of this clause (d), all general
intangibles;
(xiii) all leases of property, whether real,
personal or mixed, and all rights thereunder (whether
as lessor or lessee or otherwise);
(xiv) all fixtures and all accessions, additions,
substitutions and replacements thereto or thereof;
(xv) all rights in and to policies of insurance
and the proceeds thereof; and
8
<PAGE>
(xvi) all money, certificates of deposit and
deposit or other bank accounts, tax refunds,
instruments, securities, documents, chattel paper,
letters of credit, credits, claims, demands, contract
rights, investments, business, going concern value, and
any other personal property rights and interests of
such Obligor whatsoever, whether now owned or hereafter
acquired; and
(e) all proceeds, products and accessions of and to
any of the property described in clauses (a) through
(d) above in this Section 3 (including without limitation
any proceeds of insurance thereon), and, to the extent
related to any property described in said clauses or above
in this clause (e), all books, correspondence, credit files,
records, invoices and other papers, including without
limitation all tapes, cards, computer runs and other papers
and documents in the possession or under the control of such
Obligor or computer bureau or service company from time to
time acting for such Obligor.
SECTION 4. Perfection; Further Assurances; Remedies.
________________________________________
In furtherance of the grant of security in Section 3 hereof, each
Obligor hereby agrees with the Collateral Agent on behalf of the
Secured Parties as follows:
4.1. Delivery and Other Perfection. Each Obligor
_____________________________
shall:
(a) concurrently with the execution and delivery of
this Agreement by such Obligor, deliver (to the extent not
previously delivered under the Existing Security Agreement)
to the Collateral Agent all certificates, instruments and
other documents evidencing or relating to the Stock
Collateral listed on Schedule I hereto owned by such Obligor
and all promissory notes or other instruments evidencing or
providing for Pledged Debt outstanding on the date hereof,
and if thereafter any shares, securities, warrants, rights
or options required to be pledged under clause (a), (b) or
(c) of Section 3 hereof or any promissory notes or other
instruments evidencing or providing for Pledged Debt are
received by such Obligor, such Obligor agrees forthwith
either (i) to transfer and deliver to the Collateral Agent
such shares, securities, warrants, rights or options so
received by such Obligor (together with the certificates
evidencing such shares, securities, warrants, rights or
options accompanied by undated instruments of transfer or
assignment duly executed in blank) or such promissory notes
9
<PAGE>
or other instruments, as the case may be, all of which
thereafter shall be held by the Collateral Agent as part of
the Collateral pursuant to the terms of this Agreement
and/or (ii) to take such other action as the Collateral
Agent (in its reasonable judgment) shall deem necessary or
appropriate to duly record the Lien created hereunder on
such shares, securities, warrants, rights or options or any
of the moneys or property referred to in said clause (a),
(b) or (c);
(b) upon demand of the Collateral Agent, deliver and
pledge to the Collateral Agent any and all instruments,
securities, documents and/or chattel paper included in or
relating to the Collateral endorsed and/or accompanied by
such instruments of assignment and transfer as the
Collateral Agent deems necessary or desirable (in the
reasonable judgment of the Collateral Agent) as specified in
its demand;
(c) give, execute, deliver, file and/or record any
financing statement, notice, instrument, document, agreement
or other papers and take such other actions, that may be
necessary or desirable (in the reasonable judgment of the
Collateral Agent) to create, preserve, perfect or validate
any pledge and security interest granted pursuant hereto or
to enable the Collateral Agent to exercise and enforce its
rights hereunder with respect to such pledge and security
interest;
(d) upon request of the Collateral Agent, cause the
Collateral Agent to be listed as the lienholder for the
benefit of the Secured Parties on the certificate of title
of any equipment or other vehicles of such Obligor, whether
now owned or hereafter acquired, and within 30 days after
such request thereof deliver evidence thereof to the
Collateral Agent;
(e) to the extent the Collateral now in existence
consists of property which constitutes fixtures under the
laws of the jurisdiction in which it is located, upon the
request of the Collateral Agent, use its best efforts to
furnish to the Collateral Agent valid and effective waivers,
releases and disclaimers of liens and claims, in form
satisfactory to the Collateral Agent, from all lessors,
mortgagees, co-owners, encumbrancers, or other parties in
interest with respect to the real property upon which such
fixtures are located;
10
<PAGE>
(f) keep full and accurate books and records relating
to the Collateral in accordance with customary business
practice, and stamp or otherwise mark such books and records
in such manner as the Collateral Agent may reasonably
require in order to reflect the security interests granted
pursuant hereto;
(g) permit representatives of the Collateral Agent or
any Bank upon reasonable notice during normal business hours
to inspect any of the Collateral and to inspect and make
abstracts from its books and records pertaining to the
Collateral, and permit representatives of the Collateral
Agent to be present at such Obligor's place of business to
receive copies of all communications and remittances
relating to the Collateral, all in such manner as the
Collateral Agent or any Bank may reasonably require; and
(h) upon the occurrence and during the continuance of
any Event of Default, if and to the extent determined by the
Collateral Agent to be desirable to protect the interests of
the Secured Parties, upon request of the Collateral Agent,
promptly notify (and each Obligor hereby authorizes the
Collateral Agent so to notify) each account debtor or
obligor in respect of any credit or other obligations at any
time owing to such Obligor (including without limitation any
accounts or instruments) constituting part of the Collateral
that such Collateral has been assigned to the Collateral
Agent hereunder and/or that any payments due or to become
due in respect of such Collateral are to be made directly to
the Collateral Agent, and the Collateral Agent shall hold
such payments as part of the Collateral pursuant to the
terms of this Agreement.
4.2. Other Financing Statements and Liens. Without
____________________________________
the prior written consent of the Collateral Agent (except as
permitted by Section 8.06 of the Credit Agreement), none of the
Obligors shall file or suffer to be on file, or authorize or
permit to be filed or to be on file, in any jurisdiction, any
financing statement or like instrument with respect to the
Collateral owned by such Obligor in which the Collateral Agent is
not named as the sole secured party for the benefit of the
Secured Parties.
4.3. Preservation of Rights. Neither the Collateral
______________________
Agent nor any of the other Secured Parties shall be required to
take steps necessary to preserve any rights against prior parties
to any of the Collateral.
11
<PAGE>
4.4. Stock Collateral.
________________
(a) Each Obligor will own, beneficially and of record,
at all times 100% (or, in the case of Hit Radio, Inc., not less
than 80%) of the total number of outstanding shares of each class
of capital stock of each issuer that is a Restricted Subsidiary
of such Obligor (such shares constituting part of the Stock
Collateral hereunder) (except that Hit Radio, Inc. will own,
beneficially and of record, at all times 100% of the outstanding
shares of each class of capital stock of C&W Land Corporation).
(b) So long as no Event of Default shall have occurred
and be continuing, each Obligor which is the owner of Stock
Collateral shall have the right to exercise all powers of voting
and consent pertaining to such Stock Collateral for all purposes
not inconsistent with the terms of this Agreement, the Credit
Agreement or any instrument or agreement referred to herein or
therein, provided that such Obligor shall not vote the Stock
Collateral in any manner that is inconsistent with such terms.
(c) So long as no Event of Default shall have occurred
and be continuing, without affecting the obligations of any of
the Borrowers under any provision of the Loan Documents to which
any such Borrower is a party prohibiting such action, each
Obligor which is the owner of Stock Collateral shall be permitted
to receive and retain any payments, distributions and/or
dividends, paid in cash, upon or in respect of any Stock
Collateral owned by such Obligor.
(d) So long as no Event of Default shall have occurred
and be continuing, the Company or any of its Subsidiaries, as the
case may be, shall be permitted to receive and retain any
payments of principal of, interest on and other amounts in
respect of Pledged Debt.
(e) If any Event of Default shall have occurred, then
so long as such Event of Default shall continue, and whether or
not the Collateral Agent or any other Secured Party exercises any
available right to declare any Secured Obligation due and payable
or seeks or pursues any other relief or remedy available to it
under applicable law or under this Agreement, any Loan Document,
the Notes or any of the other documents referred to herein or
therein, (i) (subject to Section 5.10 hereof) the Collateral
Agent or its agent or nominee, as the case may be, shall have the
sole and exclusive right to exercise all powers of voting or
consent pertaining to the Stock Collateral and shall be entitled
to exercise such powers in such manner as the Collateral Agent
shall determine in its sole discretion, provided that (x) the
12
<PAGE>
Collateral Agent shall not exercise any of its powers under this
clause (i) to the extent such exercise would require under then
existing law prior approval of the FCC without first obtaining
such approval and (y) prior to obtaining such approval each
Obligor shall continue to have the right to exercise such rights
(subject to the proviso set forth in Section 4.04(b) hereof), and
(ii) all dividends and other distributions upon or in respect of
the Stock Collateral, and all principal of, interest on and other
amounts in respect of Pledged Debt, shall be paid directly to the
Collateral Agent (or its agent or nominee, as the case may be)
and held by it as part of the Collateral pursuant to the terms of
this Agreement, and, if the Collateral Agent shall so request in
writing, the Obligors shall execute and deliver to the Collateral
Agent appropriate proxies, powers of attorney, dividend,
distribution and other orders, instruments and documents to such
ends.
(f) Subject to Sections 4.04(e) and 5.10 hereof, upon
the occurrence and during the continuance of any Event of Default
the Collateral Agent may, in its sole discretion, cause any or
all of the Stock Collateral to be transferred of record into the
name of the Collateral Agent or the name of one or more agents or
nominees for the Collateral Agent. Each Obligor shall promptly
give to the Collateral Agent copies of any notices or other
communications received by it with respect to Stock Collateral
registered in such Obligor's name, as the case may be, and the
Collateral Agent shall promptly give to the respective Obligor,
as the case may be, copies of any notices and communications
received by the Collateral Agent with respect to Stock Collateral
pledged by such Obligor registered in the name of the Collateral
Agent or its agent or nominee. The Collateral Agent shall at all
times have the right to exchange certificates evidencing Stock
Collateral for certificates of smaller or larger denominations
for any purpose consistent with this Agreement and the Credit
Agreement.
(g) The Collateral Agent shall execute and deliver, or
cause to be executed and delivered, to each Obligor all such
proxies, powers of attorney, dividend, distribution and other
orders, and all such instruments, without recourse, as such
Obligor may reasonably request for the purpose of enabling such
Obligor to exercise the rights and powers which it is entitled to
exercise, or to receive the payments which it is entitled to
receive, pursuant to this Section 4.04.
13
<PAGE>
4.5. General Intangibles.
___________________
(a) For the purpose of enabling the Collateral Agent
to exercise rights and remedies under Section 4.06 hereof at such
time as the Collateral Agent shall be lawfully entitled to
exercise such rights and remedies, and for no other purpose, each
Obligor hereby grants to the Collateral Agent an irrevocable,
non-exclusive license (exercisable without payment of royalty or
other compensation to such Obligor) to use, assign, license or
sublicense any of the general intangibles (as such term is
defined in the Uniform Commercial Code) that constitute
Collateral now owned or hereafter acquired by such Obligor,
wherever the same may be located, including in such license
reasonable access to all media in which any of the licensed items
may be recorded or stored and to all computer programs used for
the compilation or printout thereof.
(b) Notwithstanding anything contained herein to the
contrary, but subject to the provisions of Section 8 of each of
the Loan Documents so long as no Event of Default shall have
occurred and be continuing, each Obligor will be permitted to
exploit, use, enjoy, protect, license, sublicense, assign, sell,
dispose of or take other actions with respect to general
intangibles that constitute Collateral in the ordinary course of
the business of the Obligors. In furtherance of the foregoing,
unless an Event of Default shall have occurred and is continuing
the Collateral Agent shall from time to time, upon the reasonable
request of any Obligor, execute and deliver any instruments,
certificates or other documents, in the form so requested but
without any recourse, warranty or representation whatsoever,
which such Obligor shall have certified are appropriate (in its
reasonable judgment) to allow it to take any action permitted
above (including relinquishment of the license provided pursuant
to clause (a) immediately above as to any specific general
intangibles that constitute Collateral). Further, upon the
termination of the obligations of the Obligors hereunder and the
release of the Lien provided for by this Agreement pursuant to
Section 5.05 hereof, the Collateral Agent shall grant back to
each Obligor the license granted pursuant to said clause (a),
without any recourse, warranty or representation whatsoever.
4.6. Events of Default, etc. Subject to Section 5.10
_______________________
hereof, during the period any Event of Default shall have
occurred and be continuing:
(a) each Obligor shall, at the request of the
Collateral Agent, assemble the Collateral owned by it at
14
<PAGE>
such place or places reasonably designated by the Collateral
Agent in its request;
(b) the Collateral Agent may make any reasonable
compromise or settlement deemed desirable with respect to
any of the Collateral and may extend the time of payment of,
arrange for payment in installments of, or otherwise modify
the terms of, any of the Collateral;
(c) the Collateral Agent shall have all of the rights
and remedies with respect to the Collateral of a secured
party under the Uniform Commercial Code (whether or not said
Code is in effect in the jurisdiction where the rights and
remedies are asserted);
(d) the Collateral Agent in its discretion may, in its
name or in the name of the relevant Obligor or otherwise,
demand, sue for, collect or receive any money or property at
any time payable or receivable on account of or in exchange
for any of the Collateral owned by such Obligor, but shall
be under no obligation to do so; and
(e) the Collateral Agent may, upon five Business Days'
prior written notice to the relevant Obligor of the time and
place, with respect to the Collateral owned by such Obligor
or any part thereof which shall then be or shall thereafter
come into the possession, custody or control of the
Collateral Agent or any of the other Secured Parties, or any
of their respective nominees or agents, sell, lease, assign
or otherwise dispose of all or any part of such Collateral,
at such place or places as the Collateral Agent deems best,
and for cash or on credit or for future delivery (without
thereby assuming any credit risk), at a public or private
sale, without demand of performance or notice of intention
to effect any such disposition or of time or place thereof
(except such notice as is required above or by applicable
law and cannot be waived) and the Collateral Agent or any
other Secured Party or anyone else may be the purchaser,
lessee, assignee or recipient of any or all of such
Collateral so disposed of at any public sale (or, to the
extent permitted by law, at any private sale), and, to the
maximum extent permitted by the law of the State of New York
(or, with respect to Collateral located outside of the State
of New York, to the maximum extent permitted by the law of
the State wherein such Collateral is located) thereafter
hold the same absolutely, free from any claim or right of
whatsoever kind, including any equity of redemption of such
Obligor, any such demand, notice or right and equity being
15
<PAGE>
hereby expressly waived and released, to the maximum extent
permitted by the law of the State of New York (or, with
respect to Collateral located outside of the State of New
York, to the maximum extent permitted by the law of the
State wherein such Collateral is located). The proceeds of
each collection, sale or other disposition under this
Section 4.06, including by virtue of the exercise of the
license granted to the Collateral Agent in Section 4.05(a)
hereof, shall be applied in accordance with Section 4.11
hereof.
4.7. Deficiency. If the proceeds of sale, collection
__________
or other realization of or upon the Collateral are insufficient
to cover the costs and expenses of such realization and the
payment in full of the Secured Obligations of any Obligor, such
Obligor shall remain liable for any deficiency in respect of
which it is obligated hereunder or under any other Basic
Document, as the case may be.
4.8. Removals, etc. Without 30 days' prior written
______________
notice to the Collateral Agent, none of the Obligors shall
maintain any of its books or records with respect to any
Collateral at any office or maintain its chief executive office
or its principal place of business at any place, or permit any
Collateral of such Obligor to be located anywhere other than at
the respective addresses indicated for such Obligor on Schedule
II hereto.
4.9. Private Sale. Subject to Section 4.13 hereof,
____________
each Obligor hereby waives any claims against any Secured Party
arising by reason of the fact that the price at which the
Collateral may have been sold at a private sale was less than the
price which might have been obtained at a public sale or was less
than the aggregate amount of such Obligor's Secured Obligations,
even if the Collateral Agent accepts the first offer received and
does not offer the Collateral to more than one offeree.
4.10. Securities Laws; Registration Rights. The
____________________________________
Company and each other Obligor which is the owner of Stock
Collateral agree that, upon the occurrence and during the
continuance of an Event of Default, if for any reason the
Collateral Agent desires to sell any of the Stock Collateral at a
public or private sale and in connection with such sale, in the
opinion of the Collateral Agent, no exemption from the
registration provisions of the Securities Act of 1933, as amended
(the "Securities Act"), is available, it will, upon the written
______________
request of the Collateral Agent, at its own expense:
16
<PAGE>
(a) use its best efforts to cause such Stock
Collateral to be registered under the provisions of the
Securities Act, and to cause the registration statement
relating thereto to become effective and to remain effective
for such period as prospectuses are required by law to be
furnished, and to make all amendments and supplements
thereto and to the related prospectus which, in the opinion
of the Collateral Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and
the rules and regulations of the Securities and Exchange
Commission, or any successor thereto, applicable thereto;
(b) use its best efforts to qualify such Stock
Collateral under state securities or "Blue Sky" laws and to
obtain all necessary governmental approvals for the sale of
such Stock Collateral, as requested by the Collateral Agent;
(c) use its best efforts to cause each "Issuer" of
such Stock Collateral to make available to its security
holders, as soon as practicable, an earnings statement which
will satisfy the provisions of Section 11(a) of the
Securities Act; and
(d) use its best efforts to do or cause to be done all
such other acts and things as may be necessary to make such
sale of Stock Collateral or any part thereof valid and
binding and in compliance with applicable law.
Nothing in this Section 4.10 shall in any way alter the rights of
the Collateral Agent or any other Secured Party or the agreements
of each Obligor under Section 4.09 hereof.
4.11. Application of Proceeds. Except as otherwise
_______________________
herein expressly provided, the proceeds of any collection, sale
or other realization of all or any part of the Collateral, and
any other cash at the time held by the Collateral Agent under
this Section 4, shall be applied by the Collateral Agent:
First, to the payment of the costs and expenses of such
_____
collection, sale or other realization, incurred by the
Collateral Agent and the other Agents, including reasonable
compensation to the Collateral Agent and the other Agents
and their respective agents and counsel, and all reasonable
expenses, liabilities and advances made or incurred by the
Collateral Agent and the other Agents in connection
therewith;
17
<PAGE>
Second, to the ratable payment to the Banks and the
______
Swap Providers, as the case may be, of (i) accrued and
unpaid interest on the Loans to the extent then due and
payable and (ii) regularly scheduled payments under Interest
Rate Protection Agreements to Swap Providers (exclusive of
early termination payments and expenses and similar payments
referred to in clause Third below) to the extent then due
and payable;
Third, to the ratable payment to the Banks and the Swap
_____
Providers, as the case may be, of (i) outstanding principal
of the Loans to the extent then due and payable and (ii)
Interest Protection Obligations of the Company to the extent
then due and payable to Swap Providers in respect of early
terminations of Interest Rate Protection Agreements (but not
in respect of expenses or similar amounts, in respect of
which distributions shall be made pursuant to clause Fourth
below);
Fourth, to the ratable payment to the Banks, the Swap
______
Providers and the Agents of all other Secured Obligations to
the extent then due and payable to each of them; and
Finally, after payment in full of all Secured
_______
Obligations, to the payment to the Company for the account
of the respective Obligors, or their respective successors
or assigns, or to whomsoever else may be lawfully entitled
to receive the same as a court of competent jurisdiction may
direct, of any surplus then remaining from such proceeds
which relate to Collateral furnished by such Obligor.
As used in this Section 4, "proceeds" of Collateral shall mean
________
cash, securities and other property realized in respect of, and
distributions in kind of, Collateral, including any thereof
received under any reorganization, liquidation or adjustment of
debt of any Obligor or any issuer of or obligor on any of the
Collateral.
4.12. Attorney-in-Fact. Without limiting any other
________________
rights or powers granted by this Agreement while no Event of
Default has occurred and is continuing, upon the occurrence and
during the continuance of any Event of Default, the Collateral
Agent is hereby appointed the attorney-in-fact of each Obligor
for the purpose of carrying out the provisions of this Section 4
and taking any action and executing any instruments which the
Collateral Agent may deem necessary or advisable to accomplish
the purposes hereof, which appointment as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the
18
<PAGE>
generality of the foregoing, so long as the Collateral Agent
shall be entitled under this Section 4 to make collections in
respect of the Collateral, the Collateral Agent shall have the
right and power to receive, endorse and collect all checks made
payable to the order of any Obligor representing any dividend,
payment or other distribution in respect of the Collateral or any
part thereof and to give full discharge for the same.
4.13. Certain Rights and Obligations of the Collateral
________________________________________________
Agent and the Secured Parties. The Collateral Agent shall at all
_____________________________
times administer and/or sell or otherwise dispose of the
Collateral in a commercially reasonable manner. Neither the
Collateral Agent nor any of the other Secured Parties shall incur
any liability as a result of the administration or sale or other
disposition of the Collateral, or any part thereof, conducted in
a commercially reasonable manner.
SECTION 5. Miscellaneous.
_____________
5.1. Governing Law. This Agreement shall be governed
_____________
by and construed in accordance with the law of the State of New
York, provided that as to Collateral located in any jurisdiction
________
other than New York, the Secured Parties shall have all the
rights to which a secured party under the laws of such
jurisdiction is entitled.
5.2. Amendments, etc. The terms of this Agreement may
________________
be amended, waived or otherwise modified only by an instrument in
writing duly executed by each Obligor (or by the Company acting
with the agreement or consent of each Obligor) and the Collateral
Agent (with the consent of such of the Banks as are required for
such purpose under the Credit Agreement). Any such amendment,
waiver or modification shall be binding upon the Collateral Agent
and each Bank, each holder of any of the Secured Obligations and
each Obligor.
5.3. Successors and Assigns. This Agreement shall be
______________________
binding upon and inure to the benefit of each Obligor and each
Secured Party, and their respective successors and assigns,
provided that no Obligor or Secured Party may assign or transfer
________
its rights or obligations hereunder except as permitted by the
Credit Agreement.
5.4. No Waiver. No failure on the part of the
_________
Collateral Agent or any other Secured Party or any of their
nominees or agents to exercise, and no course of dealing with
respect to, and no delay in exercising, any right, power or
remedy hereunder shall operate as a waiver thereof; nor shall any
19
<PAGE>
single or partial exercise by the Collateral Agent or any other
Secured Party or any of their nominees or agents of any right,
power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The
remedies herein are cumulative and are not exclusive of any
remedies provided by law.
5.5. Release of Collateral. When all Secured
_____________________
Obligations shall have been paid in full and the Commitments of
the Banks under the Credit Agreement each shall have terminated,
the obligations of the Obligors under this Agreement shall
terminate and the Collateral Agent shall thereupon, upon request
and at the sole expense of the respective Obligors, forthwith
cause (a) to be assigned, transferred and delivered, against
receipt but without any recourse, warranty or representation
whatsoever, any remaining Collateral and money received in
respect thereof, to or on the order of the respective Obligors
entitled thereto, (b) to be released and canceled all licenses
and rights referred to in Section 4.05(a) hereof and (c) to be
executed and delivered such documents as the respective Obligors
shall reasonably request to evidence the termination of the
pledge and security interest created hereby and the release of
the Collateral.
5.6. Expenses. Each Obligor agrees to pay or
________
reimburse all reasonable out-of-pocket expenses of the Collateral
Agent and each other Secured Party (including reasonable expenses
for legal services of every kind) in respect of, or incident to,
the enforcement of any of the provisions of this Agreement or in
connection with any amendment, waiver or consent relating to this
Agreement or performance by the Collateral Agent or any other
Secured Party of any obligations of any Obligor in respect of the
Collateral which such Obligor has failed or refused to perform,
or any actual or attempted sale, or any exchange, enforcement,
collection, compromise or settlement in respect of any of the
Collateral, and for the care of the Collateral and defending or
asserting rights and claims of the Collateral Agent or any other
Secured Party in respect thereof, by litigation or otherwise,
including expenses of insurance, and all such expenses shall
constitute part of the Secured Obligations owing to the
Collateral Agent or any other Secured Party, as the case may be,
hereunder.
5.7. Further Assurances. Each Obligor agrees that,
__________________
from time to time upon the written request of the Collateral
Agent and at such Obligor's expense, such Obligor will execute
and deliver such further documents and do such other acts and
20
<PAGE>
things as the Collateral Agent may reasonably request in order
fully to effect the purposes of this Agreement.
5.8. Taxes. Each Obligor agrees to pay before
_____
delinquency any tax or other governmental charge which is or can
become through assessment, distraint or otherwise a Lien on the
Collateral, except for taxes being contested in good faith and by
appropriate proceedings and for which adequate reserves are being
maintained, and to pay all transfer, stamp, documentary or other
similar taxes, assessments or charges levied by any governmental
or revenue authority in respect of this Agreement or the
transactions hereunder.
5.9. Notices. All notices, requests, consents,
_______
demands and other communications provided for herein shall be
given in the manner, and with the effect, specified in
Section 11.02 of the Credit Agreement and Section 4.02 of the
Guarantee Agreement.
5.10. FCC Approval. Any provision contained herein to
____________
the contrary notwithstanding, neither the Collateral Agent nor
any of the Secured Parties will take any action pursuant to this
Agreement, including, without limitation, pursuant to Section
4.05(a) hereof, that would constitute or result in any assignment
of any FCC License or any transfer of control of any FCC
licensee, either de facto or de jure, if such assignment of
________ _______
license or transfer of control would require under then existing
law (including the Communications Act of 1934, as amended, and
published rules and policies of the FCC) the prior approval of
the FCC without first obtaining such prior approval. Each
Obligor agrees to take, and the Company agrees to cause each
other Obligor which holds a FCC License to take, any action that
the Collateral Agent may reasonably request in order to obtain
from the FCC such approval as may be necessary to enable the
Collateral Agent to exercise and enjoy the full rights and
benefits granted to the Collateral Agent by this Agreement and
each other agreement, instrument and document delivered to the
Collateral Agent in connection herewith, including specifically,
at the expense of the Company, the use of each Obligor's best
efforts to assist in obtaining approval of the FCC for any action
or transaction contemplated by this Agreement for which such
approval is or shall be required by law, and specifically,
without limitation, upon request, to prepare, sign and file with
the FCC the assignor's or transferor's portion of any application
or applications for consent to the assignment of any license or
transfer of control necessary or appropriate under the FCC's
rules and regulations for approval of any sale or sales of any of
the Collateral by or on behalf of the Collateral Agent or any
21
<PAGE>
assumption by the Collateral Agent of voting rights relating
thereto effected in accordance with the terms of this Agreement.
5.11. Captions. Captions and section headings
________
appearing herein are included solely for convenience of reference
and are not intended to affect the interpretation of any
provision of this Agreement.
5.12. Counterparts. This Agreement may be executed in
____________
any number of counterparts, all of which taken together shall
constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such
counterparts.
5.13. Submission to Jurisdiction. Each Obligor hereby
__________________________
submits to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and of any
New York state court sitting in New York City for the purposes of
all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each Obligor
irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any
claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
5.14. Waiver of Jury Trial. EACH OF THE OBLIGORS, THE
AGENTS AND THE BANKS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
5.15. Severability. If any provision hereof is
____________
invalid and unenforceable in any jurisdiction, then, to the
fullest extent permitted by law, (i) the other provisions hereof
shall remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of the Agent and the Banks
in order to carry out the intentions of the parties hereto as
nearly as may be possible and (ii) the invalidity or
unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision
in any other jurisdiction.
22
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amended and Restated Security Agreement to be duly executed as of
the day and year first above written.
COMPANY
_______
INFINITY BROADCASTING CORPORATION
By /s/ Farid Suleman
_________________________________
Name: Farid Suleman
Title: Vice President - Finance
SUBSIDIARIES
____________
THE AUDIO HOUSE, INC.
C&W LAND CORPORATION
HEMISPHERE BROADCASTING CORPORATION
HIT RADIO, INC.
INFINITY BROADCASTING CORPORATION
OF ATLANTA
INFINITY BROADCASTING CORPORATION
OF BALTIMORE
INFINITY BROADCASTING CORPORATION
OF BOSTON
INFINITY BROADCASTING CORPORATION
OF CALIFORNIA
INFINITY BROADCASTING CORPORATION
OF CHICAGO
INFINITY BROADCASTING CORPORATION
OF DETROIT
INFINITY BROADCASTING CORPORATION
OF FLORIDA
INFINITY BROADCASTING CORPORATION
OF GLENDALE
23
<PAGE>
INFINITY BROADCASTING CORPORATION
OF ILLINOIS
INFINITY BROADCASTING CORPORATION
OF LOS ANGELES
INFINITY BROADCASTING CORPORATION
OF MARYLAND
INFINITY BROADCASTING CORPORATION
OF MICHIGAN
INFINITY BROADCASTING CORPORATION
OF NEW YORK
INFINITY BROADCASTING CORPORATION
OF PENNSYLVANIA
INFINITY BROADCASTING CORPORATION
OF PHILADELPHIA
INFINITY BROADCASTING CORPORATION
OF TAMPA
INFINITY BROADCASTING CORPORATION
OF TEXAS
INFINITY BROADCASTING CORPORATION
OF WASHINGTON D.C.
INFINITY VENTURES, INC.
INFINITY WLIF, INC.
INFINITY WLIF-AM, INC.
SAGITTARIUS BROADCASTING
CORPORATION
13 RADIO CORPORATION
By /s/ Farid Suleman
_________________________________
Name: Farid Suleman
Title: Vice President - Finance
24
<PAGE>
COLLATERAL AGENT
________________
CHEMICAL BANK
as Collateral Agent
By /s/ Terrence J. Anderson
_________________________________
Name: Terrence J. Anderson
Title: Vice President
25
<PAGE>
Omitted Schedules to the
Amended and Restated Security Agreement,
Dated as of June 7, 1994, between the Company,
each of the subsidiaries of the Company identified
under the caption "Subsidiaries" on the signature
pages thereof and Chemical Bank, as collateral
agent for the lenders or other financial
institutions or entities party, as lenders,
to the Credit Agreement
__________________________________________________
I. Initial Stock Collateral
II. Location of Chief Executive Office and Principal Place
of Business and Location of all Collateral and Books
and Records with respect to the Collateral of Each
Obligor
III. FCC Licenses
IV. Trade Names and Service Marks
In lieu of filing these schedules to the Amended and
Restated Security Agreement, the Company agrees to furnish
supplementally a copy of any such omitted schedule to the
Securities and Exchange Commission upon request.
26
