<PAGE>
_______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
____________________________
Annual Report Pursuant To Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the fiscal year ended December 31, 1994 Commission file number 0-14702
INFINITY BROADCASTING CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-2766282
(State of incorporation) (I.R.S. Employer
Identification No.)
600 Madison Avenue
New York, New York 10022
(Address of principal executive offices)
(212) 750-6400
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Name of Each Exchange on
Title of Each Class Which Registered
___________________ ________________
Class A Common Stock, NASDAQ National Market System
par value $.002 per share
Securities registered pursuant to Section 12(g) of the Act:
10-3/8% Senior Subordinated Notes Due 2002
(Title of class)
_______________________________
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such reports), and
(2) has been subject to such filing requirements for the past 90 days.
Yes x No .
___ ___
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K (Sec. 229.405 of this chapter) is not contained
herein, and will not be contained, to the best of registrant's knowledge,
in definitive proxy or information statements incorporated by reference in
Part III of this Form 10-K or any amendment to this Form 10-K. [ ]
The aggregate market value of the voting stock held by non-affiliates
of the registrant as of March 15, 1995 was approximately $1,026,926,123.
As of March 15, 1995, 27,614,359 shares of Class A Common Stock, excluding
1,356,900 treasury shares, 3,710,028 shares of Class B Common Stock, and
496,114 shares of Class C Common Stock were outstanding.
Documents Incorporated By Reference -- The registrant's definitive
proxy statement (to be filed pursuant to Regulation 14A) is incorporated by
reference into Part III of the Form 10-K for the fiscal year ended December
31, 1994.
_______________________________________________________________________________
</PAGE>
<PAGE>
TABLE OF CONTENTS
PART I
______
ITEM 1. BUSINESS . . . . . . . . . . . . . . . . . . . . . . 1
ITEM 2. PROPERTIES . . . . . . . . . . . . . . . . . . . . . 13
ITEM 3. LEGAL PROCEEDINGS . . . . . . . . . . . . . . . . . . 13
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS . 13
PART II
_______
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND
RELATED STOCKHOLDER MATTERS . . . . . . . . . . . 14
ITEM 6. SELECTED FINANCIAL DATA . . . . . . . . . . . . . . . 15
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS . . . . . . . 16
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA . . . . . 18
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE . . . . . . . 18
PART III
________
The information required in this Part is incorporated
by reference from the registrant's definitive proxy
statement (to be filed pursuant to Regulation 14A). 19
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT .
ITEM 11. EXECUTIVE COMPENSATION . . . . . . . . . . . . . . .
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND .
MANAGEMENT . . . . . . . . . . . . . . . . . . . .
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS . . .
PART IV
_______
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON
FORM 8-K . . . . . . . . . . . . . . . . . . . . . 19
SIGNATURES . . . . . . . . . . . . . . . . . . . . . 25
i
</PAGE>
<PAGE>
PART I
ITEM 1. BUSINESS
BACKGROUND
Infinity Broadcasting Corporation (the "Company" or "Infinity") is the
largest owner and operator of radio stations in the United States. It is one
of only two companies able to offer advertisers a radio listening audience in
each of the nation's top ten radio markets (the other being CBS, Inc.).
Based on information contained in Duncan's Radio Market Guide (1995
ed.), Infinity ranked first in total radio revenues in 1994 among all
companies owning radio stations in the United States. The Company serves
markets accounting for approximately $2.7 billion in radio advertising
revenues, representing approximately 27% of the total radio advertising
expenditures in the United States in 1994. Upon completion of the
acquisition of KLUV-FM referred to below, Infinity would own and operate
27 radio stations serving 13 of the nation's largest radio markets.
Since Infinity acquired its first radio station in May 1973, it has
expanded by acquiring and developing underperforming stations in the
nation's largest media markets, where the greatest proportion of radio
advertising dollars is spent. The Company believes that its presence in
large markets makes it attractive to advertisers and that the overall
diversity of its stations reduces its dependence on any single station,
local economy or advertiser.
In each of its markets, the Company attracts a specific demographic
group by targeting its program format and hiring popular on-air talent.
The Company's stations serve diverse target demographics through a broad
range of programming formats such as rock, oldies, news/talk, adult
contemporary, all-sports and country. The Company's overall programming
strategy in part is to acquire significant on-air talent and broadcasting
rights for sports franchises.
The diversity of station and market characteristics, combined with the
Company's acquisition and operating strategies, have enabled the Company to
achieve consistent growth in revenues and operating cash flow (as used in
this Form 10-K, the term "operating cash flow" means operating income plus
depreciation and amortization).
The Company was incorporated in 1972 in Delaware and first issued
shares of its common stock to the public in June 1986. In August 1988,
the Company became privately held as a result of a merger with a company
whose stockholders were the Company's principal stockholders and executive
officers at the time. The Company was the surviving corporation in the
merger. On February 5, 1992, the Company and certain holders of warrants
exercisable for shares of the Company's Class A Common Stock sold
13,788,826 shares of Class A Common Stock through an initial public
offering (the "Common Stock IPO"). In addition, on May 13, 1993, the
Company and certain holders of warrants exercisable for shares of the
Company's Class A Common Stock sold 8,148,814 shares of Class A Common
Stock through another public offering.
RECENT DEVELOPMENTS
In February 1994, the Company completed the acquisition of KRTH-FM, a
radio station serving Los Angeles, for approximately $116 million. In
June 1994, the Company completed the acquisitions of Washington, D.C. radio
stations WPGC-AM/FM for approximately $61 million and Detroit radio station
WXYT-AM for approximately $23 million (together with the acquisition of radio
stations KRTH-FM and WPGC-AM/FM, described above, the "1994 Acquisitions").
</PAGE>
<PAGE>
In addition, on February 3, 1994, the Company, Unistar Communications
Group, Inc. ("UCG") Unistar Radio Networks, Inc. ("Unistar") and Westwood
One, Inc. ("Westwood One") consummated the Stock Purchase Agreement dated
November 4, 1993 for the purchase by Westwood One of Unistar, an affiliate of
the Company, for approximately $101.3 million. In connection with the
Westwood One/Unistar transaction, an affiliate of the Company received 5
million newly issued shares of common stock of Westwood One for $3 per
share (which represents approximately 16.13% of the issued and outstanding
capital stock of Westwood One) and a warrant to purchase an additional 3
million shares of Westwood One's common stock at a purchase price of $3 per
share, subject to certain vesting requirements. In connection with the
transactions, the Company is managing Westwood One pursuant to a management
agreement, and the Company's Chief Executive Officer, Mel Karmazin, and
Chief Financial Officer, Farid Suleman, serve as the Chief Executive
Officer and Chief Financial Officer, respectively, of Westwood One. The
agreement provides for a base management fee plus a bonus based on acheiving
cash flow targets and additional warrants to acquire up to 1.5 million
shares of Westwood One's common stock at a purchase price ranging from $3
to $5 per share in the event that Westwood One's common stock trades above
certain target price levels. In September 1994, pursuant to such
provision, the Company received a warrant to purchase 500,000 shares of
Westwood One's common stock at an exercise price of $3 per share.
On September 12, 1994, the Company entered into an agreement to
purchase KLUV-FM in Dallas/Fort Worth for approximately $51 million.
The Company continues to seek opportunities for expansion through the
acquisition of additional radio stations, although its ability to make
further acquisitions may be limited by certain regulatory requirements.
See "Business--Federal Regulation of Radio Broadcasting" appearing
elsewhere in this Report.
2
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<PAGE>
<TABLE>
GENERAL
The following table sets forth certain information about the Company's
radio stations, including the pending acquisition of KLUV-FM:
<CAPTION>
1994 1994
Radio Radio
Market Market
Station Market Station Format Rank 1 Revenues 2
_______ ______ ______________ ______ __________
($ Millions)
<S> <S> <S> <C> <C>
WXRK-FM New York, NY Classic Rock 1 $401.2
WZRC-AM New York, NY - 5 1 401.2
WFAN-AM New York, NY All Sports 1 401.2
KROQ-FM 6 Los Angeles, CA Alternative Rock 2 457.4
KRTH-FM Los Angeles, CA Oldies 2 457.4
WJMK-FM/ Chicago, IL Oldies/Talk 3 296.0
WJJD-AM
WUSN-FM Chicago, IL Country 3 296.0
KOME-FM 7 San Francisco/ Alternative Rock 4/30 8 187.0/
San Jose, CA 35.9
WYSP-FM Philadelphia, PA Classic Rock 5 168.1
WIP-AM Philadelphia, PA All Sports 5 168.1
WOMC-FM Detroit, MI Oldies 6 153.0
WXYT-AM Detroit, MI News/Talk 6 153.0
KVIL-FM/ Dallas/ Adult Contemporary/ 7 180.0
KDMM-AM 9 Ft. Worth, TX Nostalgia
KLUV-FM 10 Dallas/ Oldies 7 180.0
Ft. Worth, TX
WJFK-FM 11 Washington, D.C. Personality 8 182.2
WPGC-FM/AM 12 Washington, D.C. Contemporary/ 8 182.2
Urban Contemporary
KXYZ-AM 13 Houston, TX Spanish Language 9 161.2
WBCN-FM Boston, MA Album-Oriented 10 153.8
Rock
WZLX-FM Boston, MA Classic Rock 10 153.8
WZGC-FM Atlanta, GA Classic Rock 12 149.6
WLIF-FM Baltimore, MD Adult Contemporary 18 70.1
WJFK-AM Baltimore, MD Personality 18 70.1
WQYK-FM/AM 14 Tampa/ St. Country/Talk 21 73.0
Petersburg, FL
<CAPTION>
Stations With
Target Rankings In
Target Demographics Target
Station Demographics Rank 3 Demographics 4
_______ ____________ ___________ _______________
<S> <S> <C> <C>
WXRK-FM Men 25-54 1 43
WZRC-AM - 5 - - 5
WFAN-AM Men 25-54 4 43
KROQ-FM 6 Men 18-34 1 44
KRTH-FM Persons 25-54 2 46
WJMK-FM/ Persons 25-54 7 37
WJJD-AM
WUSN-FM Persons 25-54 9 37
KOME-FM 7 Men 18-34 6/2 44/13
WYSP-FM Men 25-54 1 22
WIP-AM Men 25-54 3 22
WOMC-FM Persons 25-54 5 31
WXYT-AM Persons 25-54 13 31
KVIL-FM/ Women 25-54 2 32
KDMM-AM 9
KLUV-FM 10 Persons 25-54 6 32
WJFK-FM 11 Men 25-54 3 29
WPGC-FM/AM 12 Persons 18-34 1 28
KXYZ-AM 13 Persons 18-49 - -
WBCN-FM Men 18-34 1 26
WZLX-FM Men 25-54 2 31
WZGC-FM Men 25-54 5 20
WLIF-FM Women 25-54 4 21
WJFK-AM Men 25-54 2 17
WQYK-FM/AM 14 Persons 25-54 1 23
_________________________________________________
Notes to this table Appear on the Following Page.
3
</PAGE>
<PAGE>
_________________________________
Notes to Table on Preceding Page:
<FN>
1. Markets ranked by 1994 Arbitron metropolitan area population.
2. Radio advertising revenues according to Duncan's Radio Market
Guide (1995 ed.).
3. Target demographics rank by Fall 1994 Arbitron Radio Market
Reports.
4. Number of stations in each market with rankings in the Company's
target demographics for such market, based on the Fall 1994
Arbitron Radio Market Reports.
5. Effective July 7, 1994, the Company entered into a Time
Brokerage and Option Agreement with Radio Korea New York
("RKNY"), pursuant to which the Company will make substantially
all of the programming time on WZRC-AM available to RKNY for
its Korean language programming for a period of one year.
The agreement also provides RKNY with an option to purchase
substantially all of WZRC's assets for $9.5 million.
6. KROQ-FM is licensed to the community of Pasadena, California.
7. KOME-FM is licensed to the community of San Jose, California.
8. San Francisco and San Jose have radio market ranks of 4 and 30,
respectively, and KOME-FM's rankings within target demographics
in those markets are 6 and 2, respectively.
9. KVIL-FM is licensed to the community of Highland Park-Dallas,
Texas. KDMM-AM is licensed to the community of Highland Park,
Texas.
10. The Company has agreed to acquire KLUV-FM, subject to approval by
the Federal Communications Commission.
11. WJFK-FM is licensed to the community of Manassas, Virginia.
12. WPGC-FM/AM are licensed to the community of Morningside,
Maryland.
13. Not included in Arbitron rankings because the Company does
not subscribe to the Arbitron rankings in Houston.
14. WQYK-FM is licensed to the community of St. Petersburg, Florida,
and WQYK-AM is licensed to the community of Seffner, Florida.
</TABLE>
________________
Company Strategy
The Company's overall strategy is to own and operate radio stations in
the nation's largest radio revenue markets. The Company believes that
its presence in large markets makes it attractive to advertisers and that
the overall diversity of its stations reduces its dependence on any
single station, local economy or advertiser. The Company also believes that
by serving major markets, it is able to attract more highly skilled
management, employees and on-air talent.
In developing its stations, the Company takes a variety of actions to
improve a station's operating cash flow, including instituting strict
financial reporting requirements and cost controls, directing
promotional activities, developing programming to improve the
station's appeal to a targeted audience group and enhancing advertising
sales efforts. In particular, the Company emphasizes increasing local
4
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<PAGE>
advertising revenues in order to reduce dependence on national advertising
revenues. During the year ended December 31, 1994, the Company generated
approximately 73% of its total revenues from local and regional advertising.
In operating its stations, the Company concentrates on the development
of strong decentralized local management, which is responsible for the
day-to-day operations of the station. Local management, in cooperation
with corporate management, is responsible for developing programming.
Corporate management is responsible for long-range planning, establishing
policies and procedures, maximizing cost savings where centralized purchasing
is appropriate, resource allocation and maintaining overall control
of the stations.
The overall mix of a station's programming is designed to fit each
station's specific format and serve its local community. The Company's
overall programming strategy includes acquiring significant on-air talent
and sports franchises for its radio stations. The Company believes that this
strategy, in addition to developing loyal audiences for its radio stations,
enables the Company to obtain additional revenues, including revenues from
syndicating such programming franchises to other radio stations. In addition
to its regular programming, all of the Company's stations provide
non-entertainment programming, such as news and public affairs broadcasts.
The Company expects to continue to acquire radio stations with strong
growth potential in the Company's current markets, subject to the
Communications Act of 1934, as amended (the "Communications Act"), and
Federal Communications Commission (the "FCC") rules, which impose certain
limits on the maximum number of radio stations the Company can own
nationwide and the number of stations the Company can own in the same
geographic market. Because the Company has historically grown in part
through the acquisition of broadcasting properties, limitations imposed by
the FCC on the number of broadcasting properties the Company can acquire
could limit the Company's ability to grow through acquisitions in the
future. See "Business--Federal Regulation of Radio Broadcasting--Ownership
Matters", appearing elsewhere in this Report. Other than as described in
this Report, the Company has no present agreements or arrangements to acquire
or sell any radio stations.
The Company's affiliation with Westwood One will enable the Company to
expand its presence in the radio program distribution business while
simultaneously enhancing the programming lineups of Westwood One.
Advertising
The Company believes that radio is one of the most efficient,
cost-effective means for advertisers to reach specific demographic groups.
Advertising rates charged by radio stations are based primarily on a
station's ability to attract audiences in the demographic groups targeted by
advertisers (as measured by rating service surveys quantifying the number of
listeners tuned to the station at various times), on the number of stations
in the market competing for the same demographic group and on the supply
of and demand for radio advertising time. Rates are generally highest
during morning and evening drive-time hours.
Radio station revenues are derived substantially from local, regional
and national advertising. Local and regional sales generally are made by
a station's sales staff. National sales are made by "national rep"
firms, which specialize in radio advertising sales on the national
level. These firms are compensated on a commission-only basis.
Most advertising contracts are short-term, generally running for only a few
weeks.
5
</PAGE>
<PAGE>
Competition
Radio broadcasting is a competitive business. The Company's radio
stations compete for listeners and advertising revenues directly with other
radio stations within their markets. Radio stations compete for listeners
primarily on the basis of program content and by hiring on-air talent which
appeals to a particular demographic group. By building a strong
listenership base comprised of a specific demographic group in each of its
markets, the Company is able to attract advertisers seeking to reach these
listeners.
Other media, including broadcast television, cable television,
newspapers, magazines, direct mail, coupons and billboard advertising
also compete with the Company's stations for advertising revenues.
Seasonality
The Company's revenues vary throughout the year. As is the case
throughout the radio broadcast industry, the Company's first quarter generally
reflects the lowest revenues for each year.
Employees
As of December 31, 1994, the Company had approximately 828 full-time
employees and approximately 286 part-time employees. Certain employees at
the Company's stations in New York, Los Angeles, Chicago, Philadelphia,
and Boston, totalling approximately 185, are represented by unions.
The Company believes that its relations with its employees and their unions
are good.
The Company employs several high-profile on-air
personalities with large loyal audiences in their respective markets. The
Company generally enters into employment agreements with its on-air talent and
commissioned sales representatives to protect its interests in those
relationships that it believes to be valuable. The Company has entered into
employment agreements with three of its four executive officers (see
"Executive Compensation--Employment Agreements", appearing in Part III of
this Report, which is incorporated by reference) and with all of its
high-profile on-air personalities.
Federal Regulation of Radio Broadcasting
The ownership, operation and sale of radio stations, including those
licensed to the Company, are subject to the jurisdiction of the FCC,
which engages in extensive and changing regulation of the radio broadcasting
industry under authority granted by the Communications Act. Among other
things, the FCC assigns frequency bands for broadcasting; determines
the particular frequencies, locations and operating power of stations;
issues, renews, revokes and modifies station licenses; determines whether to
approve changes in ownership or control of station licenses; regulates
equipment used by stations; adopts and implements regulations and policies
that directly or indirectly affect the ownership, operation and employment
practices of stations; regulates program content (including indecent and
obscene program material) and has the power to impose penalties for
violations of its rules or the Communications Act.
The following is a brief summary of certain provisions of the
Communications Act and of specific FCC regulations and policies.
Reference should be made to the Communications Act, FCC rules and the
public notices and rulings of the FCC for further information concerning
the nature and extent of federal regulation of broadcast stations.
6
</PAGE>
<PAGE>
The following table sets forth certain information on each of
the Company's radio stations, including the pending acquisition of
KLUV-FM:
<TABLE>
<CAPTION>
Expiration
Date of Date of FCC
Station Market 1 Acquisition Frequency Authorization
_______ ______ ___________ _________ _____________
<S> <S> <C> <S> <C>
WXRK-FM New York, NY . . . . . . . . 11/81 92.3 MHz 06/01/98
WZRC-AM New York, NY . . . . . . . . 11/81 1480 KHz 06/01/98
WFAN-AM New York, NY . . . . . . . . 04/92 660 KHz 06/01/98
KROQ-FM Los Angeles, CA . . . . . . . 09/86 106.7 MHz 12/01/97
KRTH-FM 2 Los Angeles, CA . . . . . . . 02/94 101.1 MHz 12/01/97
WJMK-FM Chicago, IL . . . . . . . . . 07/84 104.3 MHz 12/01/96
WJJD-AM Chicago, IL . . . . . . . . . 07/84 1160 KHz 12/01/96
WUSN-FM Chicago, IL . . . . . . . . . 02/93 99.5 MHz 12/01/96
KOME-FM San Jose/San Francisco, CA . 05/73 98.5 MHz 12/01/97
WYSP-FM Philadelphia, PA . . . . . . 11/81 94.1 MHz 08/01/98
WIP-AM Philadelphia, PA . . . . . . 09/93 610 KHz 08/01/98
WOMC-FM Detroit, MI . . . . . . . . . 04/88 104.3 MHz 10/01/96
WXYT-AM Detroit, MI . . . . . . . . . 06/94 1270 KHz 10/01/96
KVIL-FM Dallas/Ft. Worth, TX . . . . 07/87 103.7 MHz 08/01/97
KDMM-AM Dallas/Ft. Worth, TX . . . . 07/87 1150 KHz 08/01/97
KLUV-FM Dallas/Ft. Worth, TX . . . . Pending 98.7MHz 08/01/97
WJFK-FM Washington, DC . . . . . . . 12/86 106.7 MHz 10/01/95
WPGC-FM Washington, DC . . . . . . . 06/94 95.5 MHz 10/01/95
WPGC-AM Washington, DC . . . . . . . 06/94 1580 KHz 10/01/95
KXYZ-AM Houston, TX . . . . . . . . . 06/83 1320 KHz 08/01/97
WBCN-FM Boston, MA . . . . . . . . . 02/79 104.1 MHz 04/01/98
WZLX-FM Boston, MA . . . . . . . . . 02/93 100.7 MHz 04/01/98
WZGC-FM Atlanta, GA . . . . . . . . . 02/93 92.9 MHz 04/01/96
WLIF-FM Baltimore, MD . . . . . . . . 05/89 101.9 MHz 10/01/95
WJFK-AM Baltimore, MD . . . . . . . . 05/89 1300 KHz 10/01/95
WQYK-FM Tampa/St. Petersburg, FL . . 12/86 99.5 MHz 02/01/96
WQYK-AM Tampa/St. Petersburg, FL . . 11/87 1010 KHz 02/01/96
_______________________
Notes to this table Appear on the Following Page.
7
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<PAGE>
___________________
Notes to Table on Preceding Page:
<FN>
1. Some stations are licensed to a different community located within
the market which they serve.
2. The FCC granted its consent to assignment of the KRTH license to the
Company on February 1, 1994. A Petition for Reconsideration of the FCC's
grant was filed by Americans for Responsible Television on March 3, 1994.
The station's operating authority and the FCC's grant of assignment remain
effective during the pendency of this Petition. See "Business--Federal
Regulation of Broadcasting--Programming and Operation".
</TABLE>
License Renewal. Radio broadcasting licenses are granted for maximum
terms of seven years. They are subject to renewal upon application to the
FCC. During certain periods when a renewal application is pending, (1)
competing applicants are permitted to file for the radio frequency being
used by the renewal applicant; (2) interested parties, including members of
the public, are permitted to file petitions to deny or informal objections
against license renewal applications; and (3) the transferability of the
applicant's license is restricted. The FCC is required to hold
evidentiary hearings on renewal applications if a competing application is
timely filed against a renewal application, or if the FCC is unable to
determine that renewal of a license would serve the public interest,
convenience and necessity, or if a petition to deny or objection raises a
"substantial and material question of fact" as to whether the grant of
the renewal application would be prima facie inconsistent with the
public interest, convenience and necessity.
Ownership Matters. The Communications Act prohibits the assignment
of a license or the transfer of control of a broadcast licensee without the
prior approval of the FCC. In determining whether to grant or renew a
broadcast license, the FCC considers a number of factors pertaining to the
licensee, including compliance with the Communications Act's limitations
on alien ownership, compliance with various rules limiting common
ownership of broadcast, cable and newspaper properties, and the "character"
of the licensee and those persons holding "attributable" interests
therein.
Under the Communications Act, broadcast licenses may not be granted to
any corporation having more than 20% of its issued and outstanding capital
stock owned or voted by aliens (including non-U.S. corporations), foreign
governments or their representatives (collectively, "Aliens") or having an
Alien as an officer or director. The Communications Act also prohibits a
corporation, without FCC waiver, from holding a broadcast license if that
corporation is controlled, directly or indirectly, by another corporation,
any officer of which is an Alien, or more than one-fourth of the directors
of which are Aliens, or more than one-fourth of the issued and outstanding
capital stock of which is owned or voted by Aliens. The FCC has
issued interpretations of existing law under which these restrictions in
modified form apply to other forms of business organizations, including
partnerships. As a result of these provisions, in the absence of a waiver,
the Company, which serves as a holding company for its various radio station
subsidiaries, cannot have more than 25% of its stock owned or voted by
Aliens, cannot have an officer who is an Alien, and cannot have more than
one-fourth of its Board of Directors consist of Aliens.
Certain merchant banking partnerships (the "Lehman Investors")
affiliated with Lehman Brothers Holdings, Inc. hold shares of the Company's
capital stock and warrants exercisable for additional shares. See
"Security Ownership of Certain Beneficial Owners and Management", appearing
in Part III of this Report which is incorporated by reference. Certain of the
Lehman Investors and certain limited partners in the Lehman Investors may
be deemed to be Aliens or controlled by Aliens or their representatives
under the Communications Act. Such Lehman Investors own and vote less
than 1% of the Company's issued and outstanding capital stock. Assuming the
exercise of the warrants held by such Lehman Investors, approximately 11.1%
and 5.7% of the Company's issued and outstanding capital stock would
8
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<PAGE>
be owned and voted, respectively, by such Lehman Investors. The warrants
held by the Lehman Investors can only be exercised by the Lehman Investors
to the extent such exercise would not cause the Company to violate the
Communications Act's limitations on Alien ownership or control.
Current FCC rules limit the number of radio broadcast stations
that can be commonly owned, operated or controlled. These rules prohibit
the Company from owning, operating or controlling, directly or
indirectly, more than 20 AM and 20 FM radio stations in the United States
provided that the Company is permitted to have a non-controlling
interest in up to 3 additional FM and 3 additional AM stations that are
controlled by members of minority groups or by certain small businesses.
The Company currently owns 16 FM radio stations and 10 AM radio
stations, and has entered into an agreement to acquire Dallas/Fort
Worth, Texas market radio station KLUV-FM.
The Communications Act and FCC rules also generally limit the common
ownership, operation, or control of radio broadcast stations in the same
service (AM or FM) serving the same geographic market, of a radio
broadcast station and a television broadcast station serving the same
geographic market and of a radio broadcast station and a daily newspaper
serving the same geographic market. Under these rules, absent waivers,
the Company would not be permitted to acquire any newspaper or
television broadcast station (other than low-power television) in a
geographic market in which it now owns any radio broadcast properties.
The FCC's rules provide for the liberal grant of waivers of the rule
prohibiting ownership of radio and television stations in the same
geographic market in the top 25 television markets if certain other
conditions are satisfied. Similar rules provide for liberal grant of
waivers of the rule prohibiting common ownership of a radio station and a
newspaper in the same market in the nation's 25 largest markets.
The Company is permitted to own up to three stations, no more than
two of which are FM stations, in markets with fewer than 15 commercial
stations, so long as the owned stations represent less than 50% of the
stations in the market; in markets with 15 or more commercial stations the
Company may own up to two AM and two FM stations, so long as the combined
audience share of those stations does not exceed 25%. The FCC is
currently considering other possible changes to some of the FCC rules
governing the ownership of broadcast properties. See "Federal Regulation
of Radio Broadcasting--Proposed Changes". The Company owns three stations in
each of the New York City, Chicago and Washington, D.C. markets, and two
FM stations in the Boston and Los Angeles markets, all of which combinations
are consistent with the FCC's local ownership rules.
The FCC generally applies its ownership limits to
"attributable" interests held by an individual, corporation, partnership
or other association. In the case of corporations holding broadcast
licenses, the interests of officers, directors and those who, directly or
indirectly, have the right to vote 5% or more of the corporation's stock (or
10% or more of such stock in the case of insurance companies, mutual
funds, bank trust departments and certain other passive investors that are
holding stock for investment purposes only) are generally attributable, as
are positions of an officer or director of a corporate parent of a broadcast
licensee. Currently, none of the Company's officers, directors or
stockholders has an attributable interest in any company licensed to operate
broadcast stations other than the Company. Certain stockholders and a
director of the Company have a non-attributable interest in another
broadcasting company, which is licensed to operate radio stations in some
of the markets in which the Company's radio stations are located.
Because such interests are non-attributable and have been disclosed
repeatedly in ownership reports filed by the Company with the FCC, and in
applications filed by the Company with the FCC which were granted, the
Company believes that these cross-interests are consistent with FCC
rules, policies and case law precedent.
9
</PAGE>
<PAGE>
Local Marketing Agreements. Over the past several years, a number of
radio stations have entered into what have commonly been referred to as
"Local Marketing Agreements", or "LMAs". While these agreements may take
varying forms, under a typical LMA, separately owned and licensed radio
stations agree to enter into cooperative arrangements of varying sorts,
subject to compliance with the requirements of the antitrust laws and the
FCC's rules and policies, including the requirement that the licensee of
each station maintain independent control over the programming and station
operations of its own stations. The most prevalent type of LMA is a time
brokerage agreement among two separately-owned radio stations serving a
common service area, whereby the licensee of one station programs substantial
portions of the broadcast day on the other licensee's station, subject to
ultimate editorial and other controls being exercised by the latter
licensee, and sells advertising time during such program segments. The FCC
has held that such agreements involving radio stations are not contrary to
the Communications Act, provided that the licensee of the station that is
being substantially programmed by another entity maintains complete
responsibility for, and control over, the operations of its broadcast
station, and assures compliance with applicable FCC rules and policies. The
Company maintains an LMA arrangement with respect to its station WZRC-AM
in New York City.
The FCC's rules provide that a station brokering more than 15% of the
weekly broadcast time of another station serving the same market will be
considered to have an attributable ownership interest in the brokered
station for purposes of the FCC's multiple ownership rules. As a
result, under these rules, a broadcast station will not be permitted to
enter into an LMA or time brokerage agreement giving it the right to program
more than 15% of the broadcast time, on a weekly basis, of another local
station that it could not own under the FCC's local ownership rules. The
FCC's rules also prohibit a broadcast licensee from simulcasting more than
25% of its programming on another station in the same broadcast service
(i.e., AM-AM or FM-FM), whether it owns that other station or has a
time brokerage or LMA arrangement with it, where the brokered and
brokering stations serve substantially the same geographic area.
Programming and Operation. The Communications Act requires broadcasters
to serve the "public interest". Since the late 1970s, the FCC gradually
has relaxed or eliminated many of the more formalized procedures it
developed to promote the broadcast of certain types of programming
responsive to the needs of a station's community of license. However,
licensees continue to be required to present programming that is
responsive to community problems, needs and interests and to maintain
certain records demonstrating such responsiveness. Complaints from
listeners concerning a station's programming often will be considered
by the FCC when it evaluates renewal applications of a licensee, although
such complaints may be filed at any time. Stations also must follow
various rules promulgated under the Communications Act that regulate, among
other things, political advertising, the broadcast of obscene or
indecent material, sponsorship identifications, the advertisement of
contests and lotteries, and technical operations, including limits on radio
frequency radiation. In addition, licensees must develop and implement
affirmative action plans designed to promote equal employment
opportunities, and must submit reports to the FCC with respect to these
matters on an annual basis and in connection with renewal applications.
Licensees must also annually file reports concerning any changes in the
ownership of a licensee or certain entities with ownership interest in a
licensee.
Failure to observe these or other rules and policies can result in
the imposition of various sanctions, including monetary forfeitures, the grant
of "short" (less than the full seven-year) renewal terms or, for
particularly egregious violations, the denial of a license renewal
application or the revocation of a license.
In a letter dated October 25, 1989, the FCC requested the Company to
respond to a complaint that it had received alleging that WXRK-FM, the
Company's New York City FM radio station, had
10
</PAGE>
<PAGE>
broadcast certain programming that contained "indecent" material. On December
29, 1989, the Company submitted a letter to the FCC in which it contended
that WXRK-FM had not broadcast "indecent" programming. On November 29,
1990, the FCC issued a Notice of Apparent Liability for Monetary Forfeiture
advising WXRK-FM (New York), WYSP-FM (Philadelphia), and WJFK-FM
(Washington, D.C.) of apparent liability for forfeitures in the amount of
$2,000 each for the broadcast, which was part of the Howard Stern Show and
had been originated by WXRK-FM and simulcast over the other two stations.
On February 11, 1991, the Company responded to this Notice, opposing the
imposition of any fine and again contending that "indecent" programming had
not been broadcast. On October 23, 1992, the FCC's Staff issued a Memorandum
Opinion and Order in which it determined that the three stations were
liable for those forfeitures. On December 30, 1993, the Company advised the
FCC that it did not intend to pay the forfeiture and that it wished to
avail itself of de novo U.S. District Court procedures in the event that
__ ____
the FCC wished to continue to pursue the matter by requesting the U.S.
Department of Justice to initiate a collection suit in such court as is
required by statute. To date FCC has not done so.
On December 18, 1992, the same date on which the FCC approved
the Company's acquisition of radio stations formerly owned by Cook Inlet
Communications located in Boston, Chicago and Atlanta, the FCC issued a Notice
of Apparent Liability (the "1992 NAL") advising the Company that it may be
liable for a $600,000 monetary forfeiture for broadcasts over WXRK-FM,
WYSP-FM, and WJFK-FM, of certain material in the Howard Stern Show that the
FCC believes may be "indecent". The NAL stated that additional enforcement
action would result if additional violations of the FCC's indecency
regulations have occurred or should occur, and that further action
could include additional monetary forfeitures, renewal of licenses for
short terms, or proceedings focusing upon the Company's qualifications to be
an FCC licensee. On February 23, 1993, the Company filed its response with
the FCC, which asserted that the cited material is not indecent and set
forth several other defenses. The FCC has taken no action on the Company's
response and the matter is pending.
On August 12, 1993, the same date on which the FCC approved the
Company's acquisition of Station WIP-AM in Philadelphia, the FCC issued a
Notice of Apparent Liability for a Forfeiture (the "1993 NAL") in the
amount of $500,000 which was directed to the Company's subsidiaries which
operate Stations WJFK-AM/FM, WXRK-FM and WYSP-FM, and which relates to the
broadcast of allegedly indecent material on certain dates in November and
December 1992 and January 1993. The 1993 NAL stated that if
additional violations of the FCC's indecency regulations should occur,
further enforcement action could include proceedings focusing upon the
Company's qualifications to be a licensee. The Company submitted a response
to the 1993 NAL on October 15, 1993, which vigorously asserted its
position that the material is not indecent, and advanced other
defenses. The FCC has taken no action on the Company's response and the
matter remains pending.
On August 5, 1993, Americans for Responsible Television ("ART")
filed a Formal Petition to Deny against the Company's application to
purchase Station KRTH-FM in Los Angeles, which contended that the
Company's pending proceedings at the FCC involving indecency matters
should cause the FCC to conclude that the Company is unqualified to purchase
KRTH-FM. In addition, an individual filed a late-filed Petition to Deny
the KRTH-FM assignment application, which made a similar argument. The
Company opposed these Petitions, and on February 1, 1994, the FCC denied those
Petitions and granted the KRTH-FM application and the Company closed the
KRTH transaction on February 15, 1994. On March 3, 1994, ART filed a
Petition for Reconsideration of the FCC's grant. The Company vigorously
opposed ART's Petition, by Opposition submitted on April 13, 1994, which was
supplemented in July, 1994. The FCC has not yet ruled on their filings
and therefore the FCC's grant of the KRTH application is not yet final.
11
</PAGE>
<PAGE>
On February 1, 1994, the same date on which the FCC granted the KRTH-FM
assignment application, the FCC released an NAL in the amount of $400,000
(the "1994 NAL") directed to Stations WXRK-FM, WYSP-FM and WJFK-AM/FM
relating to the broadcast of allegedly indecent material within the Howard
Stern Show on four dates in August, September and October, 1993. In a
response filed on April 4, 1994, the Company vigorously asserted that the
material in question is not indecent and advanced other defenses. The matter
is pending.
On May 20, 1994, on the same date that the FCC granted an application
for consent to the assignment of the licenses of Stations WPGC-AM/FM to
the Company, the FCC released an NAL in the amount of $200,000 against
Stations WXRK-FM, WJFK-AM/FM and WYSP-FM relating to the broadcast of
allegedly indecent material within the Howard Stern Show on two dates, one in
December, 1993, and one in January, 1994. On July 18, 1994, the
Company submitted a response to the NAL, vigorously contesting the
allegations set forth therein. The matter is pending before the FCC.
On November 3, 1994, ART, the same party that had filed a Petition to
Deny the KRTH assignment application, filed a Petition to Deny against
the application for FCC consent to the assignment of the KLUV-FM, Dallas,
license to the Company. The arguments advanced by ART were similar to those
set forth in its Petition against the KRTH assignment, and ART's Petition
cited two complaints relating to allegedly indecent broadcasts not
previously considered by the FCC. On November 17, 1994, the Company
filed an Opposition to the Petition which vigorously contested the
allegations set forth in the Petition and in particular showed that the
two new complaints contain no indecent material. ART filed a Reply on
November 23, 1994. The matter is currently pending at the FCC.
The Company is involved in pending proceedings at the FCC (including
complaints as to which the FCC has not taken any action) which relate
to the broadcast of allegedly indecent material by certain of the
Company's stations. The Company is contesting, on an informal basis, the
FCC's and complainants' contentions in these proceedings. Changes in FCC
policy toward indecent broadcasts or the pending proceedings against
the Company or other FCC licensees for allegedly indecent broadcasts could,
among other things, result in the FCC calling into question the
Company's continuing fitness as a licensee and delaying the grant of, or
refusing to grant, its consent to the assignment of licenses to the Company.
Proposed Changes. The Congress and the FCC have under consideration,
and may in the future consider and adopt, new laws, regulations and policies
regarding a wide variety of matters that could, directly or indirectly, affect
the operation and ownership of the Company's radio broadcast properties.
Such matters include, for example, the license renewal process; proposals to
impose spectrum use or other governmentally imposed fees upon licensees; the
FCC's equal employment opportunity rules and other matters relating to
minority and female involvement in the broadcasting industry including
enhancement of ownership opportunities; proposals to change rules relating
to political broadcasting; proposals to eliminate ownership limitations or to
change the thresholds, benchmarks or concepts applicable to attributing
ownership interests in broadcast media; proposals to permit lenders to take a
security interest in FCC licenses; technical and frequency allocation
matters, including those relative to the implementation of digital audio
broadcasting on both a satellite and terrestrial basis, spectrum for which
has been allocated by the FCC; proposals to permit expanded use of FM
translator stations; proposals to restrict or prohibit the advertising of
beer, wine and other alcoholic beverages on radio; proposals to allow
telephone companies to deliver audio and video programming to the home through
existing phone lines; and changes to broadcast technical requirements and
frequency allocation matters. The Company cannot predict whether any such
proposed changes will be adopted nor can it judge in advance what impact, if
any, any such proposed changes might have on its business. In addition, the
12
</PAGE>
<PAGE>
Company cannot predict what other changes might be considered in the future,
nor can it judge in advance what impact, if any, such other changes might
have on its business.
ITEM 2. PROPERTIES
The Company's corporate headquarters are located in midtown Manhattan.
The types of properties required to support each of the Company's radio
stations include offices, studios, transmitter sites and antenna sites.
A station's studios are generally housed with its offices in downtown
or business districts. The transmitter sites and antenna sites are generally
located so as to provide maximum market coverage.
With the exception of the Company's Houston radio station, the studios
and offices of the Company's stations, as well as its corporate headquarters
in New York City, are located in leased facilities with lease terms that
expire in one to nine years. The Company owns or leases its transmitter
and antenna sites, with lease terms that expire in one to fourteen years.
The Company does not anticipate any difficulties in renewing those leases
that expire within the next five years or in leasing other space, if required.
No one property is material to the Company's overall operations.
The Company believes that its properties are in good condition and suitable
for its operations; however, the Company continually looks for opportunities
to upgrade its properties.
The Company owns substantially all of the equipment used in its radio
broadcasting business.
ITEM 3. LEGAL PROCEEDINGS
The Company is a party to certain litigation in the ordinary course of
business and also is a party to routine filings with the FCC and
customary regulatory proceedings pending in connection with station
acquisitions and license renewals, proceedings concerning the broadcast
industry generally, and other legal and regulatory proceedings that
management does not believe are material to the Company. For a
description of certain matters pending before the FCC, see
"Business--Federal Regulation of Broadcasting--Programming and Operation",
appearing elsewhere in this Report.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the
fourth quarter of 1994.
13
</PAGE>
<PAGE>
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
Shares of the Company's Class A Common Stock, par value $.002 per share
(the "Class A Shares"), are quoted on the NASDAQ National Market System
under the symbol INFTA. See "Business--Background", appearing elsewhere in
this Report. The following table sets forth, for the calendar quarters
indicated, the high and low sales prices of the Class A Shares on the NASDAQ
National Market System, as reported in published financial sources.
<TABLE>
<CAPTION>
Year
____
High Low
____ ___
<C> <S> <C> <C>
1993:
First Quarter . . . . . . . . . . . . . 13.89 10.22
Second Quarter . . . . . . . . . . . . . 18.67 13.56
Third Quarter . . . . . . . . . . . . . . 32.17 20.33
Fourth Quarter . . . . . . . . . . . . . 35.67 24.75
1994:
First Quarter . . . . . . . . . . . . . . 33.75 25.00
Second Quarter . . . . . . . . . . . . . 28.00 20.25
Third Quarter . . . . . . . . . . . . . . 33.00 24.00
Fourth Quarter . . . . . . . . . . . . . 31.75 27.50
1995:
First Quarter (through March 15, 1995). . 38.75 30.25
</TABLE>
The above table gives effect to the stock splits effected by the Company.
There is no public trading market for the Company's Class B Common
Stock, $.002 per share (the "Class B Shares"), or its Class C Common
Stock, $.002 per share (the "Class C Shares").
As of March 15, 1995, there were approximately 17,830 holders of
Class A Shares, seven holders of record of the Class B Shares and four holders
of record of the Class C Shares.
The Company has never paid dividends on its shares of common stock, and
it is not anticipated that any dividends will be paid on any shares of any
class of the Company's common stock in the foreseeable future.
14
</PAGE>
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
The selected consolidated financial information for the Company
presented below under the captions "Statement of Operations Data" and
"Balance Sheet Data" for, and as of the end of, each of the years in the
five-year period ended December 31, 1994, is derived from the Company's
Consolidated Financial Statements. This selected consolidated financial
information should be read in conjunction with the Company's Consolidated
Financial Statements and the Notes thereto and with "Management's Discussion
and Analysis of Financial Condition and Results of Operations", appearing
elsewhere in this Report.
<TABLE>
<CAPTION>
INFINITY BROADCASTING CORPORATION
(In thousands, except per share amounts)
Year Ended December 31,
________________________________________________________________
1990 1991 1992 1993 1994
____ ____ ____ ____ ____
<S> <C> <C> <C> <C> <C>
Statement of Operations Data: 1
Total revenues . . . . . . . . . $128,944 $135,278 $171,843 $234,240 $313,359
Net revenues . . . . . . . . . . 112,184 117,959 150,230 204,522 274,120
Station operating expenses
excluding depreciation and
amortization . . . . . . . . . 59,531 61,207 81,707 109,601 143,249
________ _______ _______ _______ _______
Station operating income
excluding depreciation and
amortization . . . . . . . . . 52,653 56,752 68,523 94,921 130,871
Depreciation and amortization. . 28,682 25,582 28,926 38,853 46,606
Corporate general and
administrative expenses. . . . 3,542 3,698 4,182 4,836 5,633
________ _______ _______ _______ _______
Operating income . . . . . . . . 20,429 27,472 35,415 51,232 78,632
Interest expense . . . . . . . . 59,611 51,756 39,390 36,776 44,689
Net earnings (loss) before
extraordinary items . . . . . (39,682) (24,026) (9,432) 14,335 33,213
Net earnings (loss) per share
before extraordinary items. . (3.93) (1.63) (.30) .35 .74
Cash dividends declared per
common share. . . . . . . . . - - - - -
Weighted average number of
shares outstanding 2. . . . . 10,107 14,715 31,334 41,370 44,759
<CAPTION>
December 31,
________________________________________________________________
1990 1991 1992 1993 1994
____ ____ ____ ____ ____
<S> <C> <C> <C> <C> <C>
Balance Sheet Data: 1
Total assets . . . . . . . . . . $246,430 $212,383 $271,952 $378,040 $562,153
Long-term debt (including
current portion). . . . . . . 465,078 406,138 380,625 365,062 531,750
Stockholders' equity
(deficiency). . . . . . . . . (245,610)(222,030)(138,734) (24,240) (25,525)
Working capital . . . . . . . . (9,022) (4,709) 4,656 10,610 28,877
______________________
<FN>
1. The historical consolidated financial results for the Company are not
comparable from year to year because of the acquisition of various
broadcasting properties by the Company during the periods covered. See
"Business-- Background" and "Management's Discussion and Analysis of
Financial Condition and Results of Operations", appearing elsewhere in this
Report.
2. See Notes 1(f) and 2 of the Notes to the Company's Consolidated
Financial Statements, appearing elsewhere in this Report.
</TABLE>
15
</PAGE>
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Year Ended December 31, 1994 Compared to Year Ended December 31, 1993
Net revenues for the year ended December 31, 1994 were $274,120,000 as
compared to $204,522,000 for the year ended December 31, 1993, an
increase of approximately 34%. The increase was due principally to higher
advertising revenues at most of the Company's stations and the 1994
Acquisitions. On a pro forma basis, assuming the above acquisitions had
occurred as of the beginning of 1993, net revenues for the year ended
December 31, 1994 would have increased by approximately 14%.
Station operating expenses (excluding depreciation and amortization) for
the year ended December 31, 1994 were $143,249,000 as compared to
$109,601,000 for the year ended December 31, 1993, an increase of
approximately 31%. The increase was due principally to the above
acquisitions, expenses associated with higher revenues and higher programming
expenses. On a pro forma basis, assuming the above acquisitions had
occurred as of the beginning of 1993, station operating expenses in 1994
would have increased by approximately 11%.
Depreciation and amortization expense for the year ended December
31, 1994 was $46,606,000 as compared to $38,853,000 for the year ended
December 31, 1993, an increase of approximately $7,753,000 or 20%. The
increase was due to the depreciation and amortization expense associated with
the above acquisitions.
Operating income for the year ended December 31, 1994 was $78,632,000
as compared to $51,232,000 for the year ended December 31, 1993, an
increase of approximately 53%. The increase was due principally to
improved results at the Company's radio stations.
Net financing expense (defined as interest expense less interest
income) for the year ended December 31, 1994 was $44,529,000 as
compared to $36,291,000 for the year ended December 31, 1993, an
increase of approximately 23%. The increase was due principally to
additional borrowings in connection with the above acquisitions as well as
higher interest rates during 1994.
Income taxes, consisting principally of state and local income taxes,
for the year ended December 31, 1994 were $890,000 as compared to $606,000
for the year ended December 31, 1993, an increase of $284,000. No federal
income taxes have been provided as a result of available tax loss
carryforwards.
Net earnings for the year ended December 31, 1994 was $33,213,000
($0.74 per share) as compared to $14,335,000 ($0.35 per share) for the year
ended December 31, 1993, an increase of approximately $18,878,000 or 132%.
16
</PAGE>
<PAGE>
Year Ended December 31, 1993 Compared to Year Ended December 31, 1992
Net revenues for the year ended December 31, 1993 were $204,522,000 as
compared to $150,230,000 for the year ended December 31, 1992, an increase of
approximately 36%. The increase was due principally to higher advertising
revenues at most of the Company's stations and the acquisitions of radio
stations WIP-AM (Philadelphia) on September 1, 1993, WZGC-FM (Atlanta),
WZLX-FM (Boston) and WUSN-FM (Chicago) on February 1, 1993 and the
acquisition of WFAN-AM (New York) on April 16, 1992. On a pro forma basis,
assuming the above acquisitions had occurred as of the beginning of 1992,
net revenues for the year ended December 31, 1993 would have increased by
approximately 14%.
Station operating expenses (excluding depreciation and amortization) for
the year ended December 31, 1993 were $109,601,000 as compared to $81,707,000
for the year ended December 31,1992, an increase of approximately 34%. The
increase was due principally to the above acquisitions, expenses associated
with higher revenues and higher programming expenses. On a pro forma basis,
assuming the above acquisitions had occurred as of the beginning of 1992,
station operating expenses in 1993 would have increased by approximately 12%.
Depreciation and amortization expense for the year ended December 31,
1993 was $38,853,000 as compared to $28,926,000 for the year ended December
31, 1992, an increase of approximately $9,927,000 or 34%. The increase was
due to the depreciation and amortization expense associated with the above
acquisitions, partially offset by lower depreciation and amortization
expense at the Company's other radio stations.
Operating income for the year ended December 31, 1993 was $51,232,000
as compared to $35,415,000 for the year ended December 31, 1992, an
increase of approximately 45%. The increase was due principally to
improved results at the Company's radio stations.
Net financing expense (defined as interest expense less interest
income) for the year ended December 31, 1993 was $36,291,000 as
compared to $38,238,000 for the year ended December 31, 1992, a
decrease of approximately 5%. The decrease was due principally to lower
interest rates during 1993.
Net earnings before extraordinary items for the year ended December
31, 1993 was $14,335,000 ($0.35 per share) as compared to a net loss of
$9,432,000 ($0.30 per share) for the year ended December 31, 1992, an increase
of approximately $23,767,000. As a result of the Common Stock IPO in
February 1992, the Company recorded in 1992 a non-recurring charge of
approximately $6,503,000, resulting from the issuance in 1990 of Common
Stock to management.
In 1992, the Company recorded extraordinary charges of
approximately $12,318,000, including the write-off of deferred financing
costs of approximately $7,416,000, as a result of (a) the redemption of all
of the remaining, approximately $98,000,000 principal amount of the Company's
14.25% Subordinated Discount Debentures (the "14.25% Subordinated
Debentures"), and (b) the refinancing of the Company's then existing bank
credit agreement.
17
</PAGE>
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
For the year ended December 31, 1994, net cash flow from operating
activities was approximately $73,944,000 as compared to $42,781,000 for the
year ended December 31, 1993, an increase of approximately $31,163,000 or
73%. The increase was principally due to higher earnings in 1994 partially
offset by higher working capital requirements.
During 1994, the Company borrowed approximately $200 million under its
credit agreement to finance the acquisition and working capital of radio
stations KRTH-FM, WPGC-AM/FM and WXYT-AM.
The net cash flow from operating activities of approximately $73.9
million together with net borrowings of approximately $166.7 million were
used principally to finance acquisition and purchase treasury stock.
On December 22, 1994, the Company and its subsidiaries amended and
restated its existing credit agreement (the "Credit Agreement"), which
provides for aggregate borrowings of up to $700 million, including an
acquisition facility of $250 million. Approximately $332 million of
borrowings under the Credit Agreement were used to refinance the Company's
existing debt and $118 million is available for general corporate
purposes, including investments and repurchases of Class A Shares.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The information called for by this Item is included on Pages F-1 through
F-15 of this Report on Form 10-K and is incorporated herein by reference.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE
The information called for by this Item is not applicable.
18
</PAGE>
<PAGE>
PART III
The information required in this Part is incorporated by reference
from the registrant's definitive proxy statement (to be filed pursuant to
Regulation 14A).
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) 1. Financial Statements.
2. Financial Statement Schedules.
The financial statements and schedule listed in the index to the
Consolidated Financial Statements of the Company that appears on Page 26 of
this Report on Form 10-K are filed as part of this Report.
3. Exhibits
Exhibit
Number Description of Exhibit
_______ ________________________
2(a) __ Securities Purchase Agreement, dates as of September 30, 1991, by
and among the Company, Michael A. Wiener, Gerald Carrus,
Mel Karmazin, and Shearson Lehman Hutton Capital Partners II, L.P.,
Shearson Lehman Hutton Merchant Banking Portfolio Partnership L.P.,
Shearson Lehman Hutton Offshore Investment Partnership L.P., and
Shearson Lehman Hutton Offshore Investment Partnership Japan L.P.
(collectively, the "Lehman Investors"). (This exhibit can be found
as Exhibit 2(a) to the Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1991 (File No. 0-14702) and
is incorporated herein by reference.)
2(b) __ Stock Purchase Agreement, dated as of December 16, 1991, between
Infinity Broadcasting Corporation of New York and KPWR, Inc. (This
exhibit can be found as Exhibit 2(c) to the Company's Registration
Statement on Forms S-1 and S-3 (Registration No. 33-44568) and is
incorporated herein by reference.)
2(c) __ Assignment and Assumption Agreement, dated as of December 16, 1991,
between Infinity Broadcasting Corporation of New York and
the Company. (This exhibit can be found as Exhibit 2(d) to the
Company's Registration Statement on Forms S-1 and S-3 (Registration
No. 33-44568) and is incorporated herein by reference.)
2(d) __ Asset Purchase Agreement, dated as of August 15, 1992, between Cook
Inlet Radio Partners, L.P., Cook Inlet Radio License Partnership,
L.P., Infinity Broadcasting Corporation of Chicago, Infinity
Broadcasting Corporation of Atlanta, Infinity Broadcasting
Corporation of Boston and the Company. (This exhibit can be found
as Exhibit 2(c) to the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1992 (File No. 0-14702) and is
incorporated herein by reference.)
2(e) __ Asset Purchase Agreement, dated as of September 25, 1992,
between Spectacor Broadcasting, L.P. and Infinity Broadcasting
Corporation of Philadelphia. (This exhibit can be found as
Exhibit 2(d) to the Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1992 (File No. 0-14702) and
is incorporated herein by reference.)
19
</PAGE>
<PAGE>
Exhibit
Number Description of Exhibit
_______ ______________________
2(f) __ Purchase Agreement, dated as of June 16, 1993, among
Beasley FM Acquisition Corp., Infinity Broadcasting
Corporation of California and the Company. (This
exhibit can be found as Exhibit 2(e) to the Company's
Quarterly Report on Form 10-Q for the quarter ended
June 30, 1993 (File No. 0-14702) and is incorporated
herein by reference.)
2(g) __ Asset Purchase Agreement, dated as of October 4, 1993,
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(h) __ 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 fiscal
year ended December 31, 1993 (File No. 0-14702) and is
incorporated herein by reference.)
2(i) __ Asset Purchase Agreement, dated as of September 12, 1994,
by and between TK Communications, Inc. and Infinity Broadcasting
Corporation of Dallas. (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, 1994 (File No. 0-14702)
and is incorporated herein by reference.)
3(a) __ Restated Certificate of Incorporation of the Company,
as amended October 22, 1993. (This exhibit can be found
as Exhibit 3 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.)
3(b) __ Amended and Restated By-Laws of the Company. (This exhibit
can be found as Exhibit 3(b) to the Company's Registration
Statement on Forms S-1 and S-3 (Registration No. 33-46118)
and is incorporated herein by reference.)
4(a) __ Indenture, dated as of March 24, 1992, between the
Company and Bank of Montreal Trust Company, as Trustee.
(This exhibit can be found as Exhibit 4(c) to the
Company's Registration Statement on Form S-3
(Registration No. 33-61348) and is incorporated herein
by reference.)
4(b) __ Second Amended and Restated Credit Agreement, dated as
of December 22, 1994, between the Company, and each of the
lenders identified under the the caption "Banks" on the
signature pages thereof (the "Banks"), The Chase Manhattan
Bank (National Association) as Administrative Agent for
the Banks, Bank of America Illinois, Bank of Montreal, The
Bank of New York, Chemical Bank, Compagnie Financiere de CIC
et de L'Union Europeenne, The First National Bank of Boston
and National Westminster Bank USA as co-agents for the Banks,
and Chemical Bank as collateral agent for the Banks, including
the form of the separate Amended and Restated Loan Agreements,
between each of Hemisphere Broadcasting Corporation, Sagittarius
Broadcasting Corporation, Infinity Broadcasting Corporation of
Boston and Infinity Broadcasting Corporation of California and
The Chase Manhattan (National Association) as Administrative
Agent, attached thereto as Exhibit B.
4(c) __ Second Amended and Restated Security Agreement, dated as
of December 22, 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 Banks.
20
</PAGE>
<PAGE>
Exhibit
Number Description of Exhibit
_______ ______________________
4(d) __ Amended and Restated Stockholders' Agreement, dated as
of February 5, 1992, among the Company, Michael A.
Wiener, Gerald Carrus, Mel Karmazin and the Lehman
Investors. (This exhibit can be found as Exhibit 4(j)
to the Company's Registration Statement on Forms S-1
and S-3 (Registration No. 33-46118) and is incorporated
herein by reference.)
4(e) __ Warrant Certificate, dated January 28, 1992, certifying
that Shearson Lehman Hutton Capital Partners II L.P. is
the owner of warrants to purchase 2,366,949 shares of
Class C Common Stock, par value $.002 per share, of the
Company. (This exhibit can be found as Exhibit 4(l) to
the Company's Registration Statement on Forms S-1 and
S-3 (Registration No. 33-46118) and is incorporated
herein by reference.)
4(f) __ Warrant Certificate, dated January 28, 1992, certifying
that Lehman Brothers Merchant Banking Portfolio
Partnership L.P. is the owner of warrants to purchase
3,481,590 shares of Class C Common Stock, par value
$.002 per share, of the Company. (This exhibit can be
found as Exhibit 4(m) to the Company's Registration
Statement on Forms S-1 and S-3 (Registration No. 33-
46118) and is incorporated herein by reference.)
4(g) __ Warrant Certificate, dated December 14, 1993,
certifying that Shearson Lehman Hutton Offshore
Investment Partnership L.P. is the owner of warrants to
purchase 769,465 shares of Class C Common Stock, par
value $.002 per share, of the Company. (This exhibit
can be found as Exhibit 4(j) to the Company's Annual
Report on Form 10-K for the fiscal year ended December
31, 1993 (File No. 0-14702) and is incorporated herein
by reference.)
4(h) __ Warrant Certificate, dated December 14, 1993,
certifying that Shearson Lehman Hutton Offshore
Investment Partnership Japan L.P. is the owner of
warrants to purchase 2,317,522 shares of Class C Common
Stock, par value $.002 per share, of the Company.
(This exhibit can be found as Exhibit 4(k) to the
Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1993 (File No. 0-14702) and is
incorporated herein by reference.)
4(i) __ Securities Exchange Agreement, dated as of January 28,
1992, among the Company and the Lehman Investors.
(This exhibit can be found as Exhibit 4(p) to the
Company's Registration Statement on Forms S-1 and S-3
(Registration No. 33-46118) and is incorporated herein
by reference.)
10(a)* __ Employment Agreement, dated as of December 30, 1985,
between the Company and Michael A. Wiener. (This exhibit
can be found as Exhibit 10(a) to the Company's Registration
Statement on Form S-1 (Registration No. 33-5190) and is
incorporated herein by reference.)
10(b)* __ Employment Agreement, dated as of December 30, 1985,
between the Company and Gerald Carrus. (This exhibit can be
found as Exhibit 10(b) to the Company's Registration Statement
on Form S-1 (Registration No. 33-5190) and is incorporated
herein by reference.)
10(c)* __ Employment Agreement, dated as of September 10, 1990, between
the Company and Mel Karmazin. (This exhibit can be found as
Exhibit 28(a) to the Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1990 (File No. 0-14702)
and is incorporated herein by reference.)
* Denotes management contract or compensatory plan or arrangement required
to be filed as an exhibit pursuant to item 14(c) of Form 10-K.
21
</PAGE>
<PAGE>
Exhibit
Number Description of Exhibit
_______ ______________________
10(d)* __ First Amendment, dated September 30, 1991, to the Employment
Agreement, dated as of September 10, 1990, between the
Company and Mel Karmazin. (This exhibit can be found as Exhibit
10(d) to the Company's Registration Statement on Forms S-1 and
S-3 (Registration No. 33-44568) and is incorporated herein by
reference.)
10(e)* __ Second Amendment, dated February 4, 1992, to the Employment
Agreement, dated as of September 10, 1990, between the Company
and Mel Karmazin. (This exhibit can be found as Exhibit 10(e)
to the Company's Registration Statement on Forms S-1 and S-3
(Registration No. 33-46118) and is incorporated herein by
reference.)
10(f)* __ Third Amendment, effective as of June 14, 1993, to the
Employment Agreement, dated as of September 10, 1990,
between the Company and Mel Karmazin. (This exhibit
can be found as Exhibit 10(a) to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1993
(File No. 0-14702) and is incorporated herein by reference.)
10(g)* __ Fourth Amendment, effective as of August 16, 1993, to the
Employment Agreement, dated as of September 10, 1990,
between the Company and Mel Karmazin. (This exhibit can
be found as Exhibit 10(b) to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1993
(File No. 0-14702) and is incorporated herein by reference.)
10(h)* __ Fifth Amendment, effective as of November 19, 1993, to the
Employment Agreement, dated as of September 10, 1990, between
the Company and Mel Karmazin. (This exhibit can be found as
Exhibit 10(d) 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.)
10(i)* __ Sixth Amendment, effective as of March 30, 1994, to the
Employment Agreement, dated as of September 10, 1990, between
the Company and Mel Karmazin. (This exhibit can be found
as Exhibit 10(a) to the Company's Quarterly Report on Form
10-Q for the quarter ended March 31, 1994 (File No. 0-14702)
and is incorporated herein by reference.)
10(j)* __ The Company's Stock Option Plan, amended and restated as of
August 16, 1993. (This exhibit can be found as Exhibit 10(j)
to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1993 (File No. 0-14702) and is
incorporated herein by reference.)
10(k)* __ Amendment, effective as of November 19, 1993, to the Company's
Stock Option Plan, as amended and restated as of August 16, 1993.
(This exhibit can be found as Exhibit 10(k) to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31,
1993 (File No. 0-14702) and is incorporated herein by
reference.)
10(l)* __ Amendment, adopted March 30, 1994, to the Company's Stock Option
Plan. (This exhibit can be found as Exhibit 10(l) to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993 (File No. 0-14702) and is incorporated herein
by reference.)
10(m)* __ The Company's Deferred Share Plan, amended and restated as
of August 16, 1993. (This exhibit can be found as Exhibit
10(l) to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1993 (File No. 0-14702)
and is incorporated herein by reference.)
* Denotes management contract or compensatory plan or arrangement required
to be filed as an exhibit pursuant to item 14(c) of Form 10-K.
22
</PAGE>
<PAGE>
Exhibit
Number Description of Exhibit
_______ ______________________
10(n)* __ Amendment, effective as of November 19, 1993, to the
Company's Deferred Share Plan, as amended and restated as of
August 16, 1993. (This exhibit can be found as Exhibit 10(m) to
the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993 (File No. 0-14702) and is incorporated herein
by reference.)
10(o)* __ The Company's Cash Bonus Compensation Plan, adopted on
March 30, 1994. (This exhibit can be found as Exhibit 10(n)
to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993 (File No. 0-14702) and is incorporated
herein by reference.)
10(p)* __ Indemnity Agreement, dated as of February 27, 1986,
between the Company and Michael A. Wiener. (This exhibit
can be found as Exhibit 10(f) to the Company's Registration
Statement on Form S-1 (Registration No. 33-5190) and is
incorporated herein by reference.)
10(q)* __ Indemnity Agreement, dated as of February 27, 1986, between
the Company and Gerald Carrus. (This exhibit can be found
as Exhibit 10(g) to the Company's Registration Statement on
Form S-1 (Registration No. 33-5190) and is incorporated
herein by reference.)
10(r)* __ Indemnity Agreement, dated as of February 7, 1986, between
the Company and Mel Karmazin. (This exhibit can be found as
Exhibit 10(h) to the Company's Registration Statement on Form
S-1 (Registration No. 33-5190) and is incorporated herein by
reference.)
10(s)* __ Indemnity Agreement, dated as of June 22, 1987, between the
Company and Farid Suleman. (This exhibit can be found as Exhibit
10(j) to the Company's Registration Statement on Form S-1
(Registration No. 33-15285) and is incorporated herein
by reference.)
10(t)* __ Indemnity Agreement, dated as of February 4, 1992, between
the Company and Steven A. Lerman. (This exhibit can be found as
Exhibit 10(l) to the Company's Registration Statement on
Forms S-1 and S-3 (Registration No. 33-46118) and is
incorporated herein by reference.)
10(u)* __ Indemnity Agreement, dated as of November 9, 1992, between
the Company and Alan R. Batkin. (This exhibit can be found
as Exhibit 10(m) to the Company's Report on Form 10-K for
the year ended December 31, 1992 (File No. 0-14702) and
is incorporated herein by reference.)
10(v)* __ Indemnity Agreement, dated as of October 18, 1994, between
the Company and Jeffrey Sherman.
10(w)* __ Stock Option Agreement, dated as of June 27, 1988,
between the Company, as successor to WCK, and Mel Karmazin.
(This exhibit can be found as Exhibit (c)(2) to the Statement
on Schedule 13E-3 filed pursuant to Rule 13e-3 by WCK, the
Management Investors (Michael A. Wiener, Gerald Carrus and Mel
Karmazin) and the Company and is incorporated herein by reference.)
10(x)* __ Amendment Agreement, dated as of August 2, 1988, to
Stock Option Agreement dated as of June 27, 1988, between the
Company, as successor to WCK, and Mel Karmazin. (This exhibit
can be found as Exhibit 9(c)(7) to Amendment No. 3 to Schedule
14D-1 filed by the Company as successor to WCK and is
incorporated herein by reference.)
* Denotes management contract or compensatory plan or arrangement required
to be filed as an exhibit pursuant to item 14(c) of Form 10-K.
23
</PAGE>
<PAGE>
Exhibit
Number Description of Exhibit
_______ ______________________
10(y)* __ Amendment No. 1 to Stock Option Agreement, dated as of
October 14, 1988, between the Company and Mel Karmazin.
(This exhibit can be found as Exhibit 4(l) to the Company's
Annual Report on Form 10-K for the year ended December 25,
1988 (File No. 0-14702) and is incorporated herein by reference.)
10(z)* __ Agreement, dated as of July 26, 1993, between the Company
and Mel Karmazin, with respect to the exercise of certain
options granted pursuant to the Stock Option Agreement,
dated as of June 27, 1988, as amended, between the Company,
as successor to WCK, and Mel Karmazin. (This exhibit can
be found as Exhibit 10(d) to the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1993 (File
No. 0-14702) and is incorporated herein by reference.)
10(aa) __ Warrant Certificate, dated September 30, 1991, certifying that
Mel Karmazin is the owner of warrants to purchase shares of
Class A Common Stock, par value $.002 per share, of the
Company. (This exhibit can be found as Exhibit 10(p) to
the Company's Registration Statement on Forms S-1 and S-3
(Registration No. 33-46118) and is incorporated herein by
reference.)
10(bb) __ Amended and Restated Credit Agreement, Purchase and Release
Agreement, dated as of February 3, 1994, among Unistar
Radio Networks, Inc. (formerly known as Unistar Holdings, Inc.),
UCGI, Inc. (formerly known as Unistar Communications Group, Inc.),
TMRG, Inc. (formerly known as The Market Research Group, Inc.),
The Chase Manhattan Bank (National Association), as lender and as
agent, the Company and Novastar, Inc. (This exhibit can be found
as Exhibit 10(cc) to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1993 (File No. 0-14702) and
is incorporated herein by reference.)
10(cc) __ Securities Purchase Agreement, dated as of November 4, 1993,
between Westwood One, Inc. and Infinity Network Inc. (This exhibit
can be found as Exhibit 10(b) 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.)
10(dd) __ Stock Purchase Agreement, dated as of November 4, 1993, among
UCGI, Inc. (formerly known as Unistar Communications Group, Inc.),
Unistar Radio Networks, Inc., the Company and Westwood One,Inc. and
Infinity Network Inc. (This exhibit can be found as Exhibit 10(a)
to the Company's Report on Form 8-K filed on November 17, 1993
(File No. 0-14702) and is incorporated herein by reference.)
10(ee) __ Management Agreement, dated as of February 3, 1994, between
Westwood One, Inc. and the Company. (This exhibit can be found
as Exhibit 10(ff) to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1993 (File No. 0-14702)
and is incorporated herein by reference.)
21 __ Subsidiaries of the Company.
23 __ Consent of KPMG Peat Marwick LLP, Independent Certified Public
Accountants.
27 __ Financial Data Schedule.
(b) Reports on Form 8-K
No Reports on Form 8-K were filed by the Company during the
fourth quarter of the fiscal year covered by this Report.
* Denotes management contract or compensatory plan or arrangement required
to be filed as an exhibit pursuant to item 14(c) of Form 10-K.
24
</PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly authorized, on the
30th day of March, 1995.
INFINITY BROADCASTING CORPORATION
/s/ MICHAEL A. WIENER
BY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Michael A. Wiener
Co-Chairman of the Board
of Directors and Secretary
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of
the Registrant and in the capacities and on the dates indicated.
/s/ Michael A. Wiener March 30, 1995
. . . . . . . . . . . . . . . . . . . . . . . . . . .
Michael A. Wiener Date
Co-Chairman of the Board of
Directors and Secretary
/s/ Gerald Carrus March 30, 1995
. . . . . . . . . . . . . . . . . . . . . . . . . . .
Gerald Carrus Date
Chairman of the Board
of Directors and Treasurer
/s/ Mel Karmazin March 30, 1995
. . . . . . . . . . . . . . . . . . . . . . . . . . .
Mel Karmazin Date
Director, President, and
Chief Executive Officer
/s/ Farid Suleman March 30, 1995
. . . . . . . . . . . . . . . . . . . . . . . . . . .
Farid Suleman Date
Director, Vice President--Finance,
and Chief Financial Officer
/s/ James A. Stern March 30, 1995
. . . . . . . . . . . . . . . . . . . . . . . . . . .
James A. Stern Date
Director
/s/ James L. Singleton March 30, 1995
. . . . . . . . . . . . . . . . . . . . . . . . . . .
James L. Singleton Date
Director
/s/ Steven A. Lerman March 30, 1995
. . . . . . . . . . . . . . . . . . . . . . . . . . .
Steven A. Lerman Date
Director
/s/ Alan R. Batkin March 30, 1995
. . . . . . . . . . . . . . . . . . . . . . . . . . .
Alan R. Batkin Date
Director
/s/ Jeffrey Sherman March 30, 1995
. . . . . . . . . . . . . . . . . . . . . . . . . . .
Jeffrey Sherman Date
Director
_________________________________________
* Mr. Suleman also performs the functions of Chief Accounting Officer
25
</PAGE>
<PAGE>
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
AND FINANCIAL STATEMENT SCHEDULES
COVERED BY INDEPENDENT AUDITORS' REPORT
(Item 14(a)1)
Page
____
Independent Auditors' Report . . . . . . . . . . . . . . . F-1
Consolidated balance sheets as of December 31, 1993 and 1994 F-2
Consolidated statements of operations for each of the years in
the three-year period ended December 31, 1994 . . . . . F-3
Consolidated statements of changes in stockholders' equity
(deficiency) for each of the years in the three-year
period ended December 31,1994 . . . . . . . . . . . . . F-4
Consolidated statements of cash flows for each of the years in
the three-year period ended December 31, 1994 . . . . . F-5
Notes to consolidated financial statements . . . . . . . . F-6
Financial statement schedule for each of the years in the
three-year period ended December 31, 1994
VIII Valuation and qualifying accounts. . . . . . . . . . . F-15
All other schedules have been omitted because the required information
either is not applicable or is shown in the consolidated financial statements
or notes thereto.
26
</PAGE>
<PAGE>
INDEPENDENT AUDITORS' REPORT
____________________________
The Board of Directors and Stockholders
Infinity Broadcasting Corporation:
We have audited the consolidated financial statements of Infinity Broadcasting
Corporation and subsidiaries as listed in the accompanying index. In
connection with our audits of the consolidated financial statements, we
also audited the financial statement schedule as listed in the accompanying
index. These consolidated financial statements and financial statement
schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated financial
statements and financial statement schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used
and significant estimates made by management, as well as evaluating the
overall financial statement presentation. We believe that our audits
provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of
Infinity Broadcasting Corporation and subsidiaries as of December 31, 1993
and 1994, and the results of their operations and their cash flows for
each of the years in the three-year period ended December 31, 1994, in
conformity with generally accepted accounting principles. Also in our
opinion, the related financial statement schedule, when considered in relation
to the basic consolidated financial statements taken as a whole, presents
fairly, in all material respects, the information set forth therein.
KPMG PEAT MARWICK LLP
New York, New York
January 31, 1995
F-1
</PAGE>
<PAGE>
<TABLE>
<CAPTION>
INFINITY BROADCASTING CORPORATION AND
SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
Dec 31, Dec 31,
1993 1994
------- -------
(Dollars In Thousands)
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents . . . . . . . . . . . . . $ 9,913 $ 7,720
Receivables (less allowance of $1,027 in
1993 and $1,535 in 1994). . . . . . . . . . . . 57,249 76,549
Prepaid expenses and other current assets . . . . . 2,978 536
------- --------
Total Current Assets . . . . . . . . . . . . 70,140 84,805
Property and equipment at cost (net of accumulated ------- --------
depreciation of $9,332 in 1993 and $10,729 in 1994) 18,749 22,288
Intangible assets (net of accumulated amortization
of $73,077 in 1993 and $120,950 in 1994). . . . 277,047 441,187
Other assets . . . . . . . . . . . . . . . . . . . . . 12,104 13,873
-------- --------
$378,040 $562,153
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIENCY)
Current Liabilities:
Accounts payable and other accrued expenses . . . . $ 12,841 $ 16,035
Accrued compensation. . . . . . . . . . . . . . . . 3,236 6,142
Accrued interest. . . . . . . . . . . . . . . . . . 7,776 9,605
Income taxes. . . . . . . . . . . . . . . . . . . . 7,477 7,927
Other current liabilities . . . . . . . . . . . . . 5,888 16,219
Current portion of long-term debt . . . . . . . . . 22,312 -
------- --------
Total Current Liabilities. . . . . . . . . . 59,530 55,928
------- --------
Long-term debt, less current portion . . . . . . . . . 342,750 531,750
Commitments and contingencies. . . . . . . . . . . . .
Stockholders' equity (deficiency): . . . . . . . . . .
Preferred stock, $.01 par value: 1,000,000 shares
authorized; none issued . . . . . . . . . . . . . . - -
Class A Common Stock, $.002 par value: 75,000,000
shares authorized; 28,377,585 shares issued and
outstanding in 1993 and 28,768,933 shares issued
in 1994 . . . . . . . . . . . . . . . . . . . . . . 57 58
Class B Common Stock, $.002 par value: 17,500,000
shares authorized; issued and outstanding
3,990,621 shares in 1993 and 3,845,154 shares
in 1994 . . . . . . . . . . . . . . . . . . . . . . 8 8
Class C Common Stock, $.002 par value: 30,000,000
shares authorized; issued and outstanding 496,114
shares in 1993 and 1994 . . . . . . . . . . . . . . 1 1
Additional paid-in capital . . . . . . . . . . . . . . 259,748 260,093
Retained earnings (deficit) . . . . . . . . . . . . . (284,054) (250,841)
--------- ---------
(24,240) 9,319
Less treasury stock at cost, 1,304,400 shares in 1994 - (34,844)
--------- --------
Total stockholders' equity (deficiency). . . . . . (24,240) (25,525)
--------- --------
$378,040 $562,153
========= ========
See accompanying Notes to Consolidated Financial Statements
</TABLE>
F-2
</PAGE>
<PAGE>
<TABLE>
<CAPTION>
INFINITY BROADCASTING CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
Years Ended December 31,
_______________________________________
1992 1993 1994
---- ---- ----
(Dollars and Shares In Thousands
Except Per Share Amounts)
<S> <C> <C> <C>
Total revenues. . . . . . . . . . . . . . $171,843 $234,240 $313,359
Less agency commissions. . . . . . . . 21,613 29,718 39,239
-------- -------- --------
Net revenues. . . . . . . . . . . . 150,230 204,522 274,120
-------- -------- --------
Station operating expenses excluding
depreciation and amortization . . . 81,707 109,601 143,249
Depreciation and amortization . . . . . . 28,926 38,853 46,606
Corporate general and administrative
expenses. . . . . . . . . . . . . . 4,182 4,836 5,633
-------- ------- -------
114,815 153,290 195,488
-------- ------- -------
Operating income . . . . . . . . . . . 35,415 51,232 78,632
-------- ------- -------
Other income (expense)
Interest expense . . . . . . . . . . . (39,390) (36,776) (44,689)
Interest income. . . . . . . . . . . . 1,152 485 160
Other expense. . . . . . . . . . . . . (6,503) - -
--------- ------- --------
Earnings (loss) before income taxes
and extraordinary items. . . . . . . . (9,326) 14,941 34,103
Income taxes. . . . . . . . . . . . . . . 106 606 890
--------- ------- --------
Net earnings (loss) before extraordinary
items. . . . . . . . . . . . . . . . . (9,432) 14,335 33,213
Extraordinary items . . . . . . . . . . . (12,318) - -
--------- ------- -------
Net earnings (loss) . . . . . . . . . . . $(21,750) $ 14,335 $33,213
========= ======= =======
Earnings (loss) per common share:
Before extraordinary items . . . . . . $ (0.30) $ 0.35 $ 0.74
Extraordinary items. . . . . . . . . . (0.39) 0.00 0.00
--------- --------- ---------
Net earnings (loss) per common share. . . $ (0.69) $ 0.35 $ 0.74
========= ========= =========
Weighted average shares outstanding . . . 31,334 41,370 44,759
========= ========= =========
See accompanying Notes to Consolidated Financial Statements
</TABLE>
F-3
</PAGE>
<PAGE>
<TABLE>
<CAPTION>
INFINITY BROADCASTING CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIENCY)
Years Ended December 31, 1992, 1993 and 1994
(In Thousands)
Class A Class B Class C
Common Stock Common Stock Common Stock
------------ ------------ ------------
Shares Amt Shares Amt Shares Amt
------ --- ------ --- ------ ---
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1991 515 $ 2 4,010 $ 9 5,254 $11
Net loss - - - - - -
Vesting of Deferred Shares - - - - - -
Exercise of Class A Warrants 108 - - - - -
Issuance of Common Stock 13,849 27 34 - - -
Conversion of Class B
Common Stock to Class A
Common Stock 34 - (34) - - -
------ --- ------ --- ------ ---
Balance at December 31, 1992 14,506 29 4,010 9 5,254 11
Net earnings - - - - - -
Exercise of Warrants 1,680 3 135 - 42 -
Issuance of Deferred Shares - - 596 1 - -
Issuance of Class A Common
Stock 6,642 13 - - - -
Conversion of Class B and
Class C Common Stock to
Class A Common Stock 5,550 12 (750) (2) (4,800) (10)
------ --- ------ --- ------ ---
Balance at December 31, 1993 28,378 57 3,991 8 496 1
Net earnings - - - - - -
Issuance of Class A Common
Stock 245 1 - - - -
Conversion of Class B
Common Stock to Class A
Common Stock 146 - (146) - - -
Treasury Stock acquired - - - - - -
------ --- ------ --- ------ ---
Balance at December 31, 1994 28,769 $58 3,845 $ 8 496 $ 1
====== === ====== === ====== ===
See accompanying Notes to Consolidated Financial Statements
<CAPTION>
INFINITY BROADCASTING CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIENCY)
Years Ended December 31, 1992, 1993 and 1994
(In Thousands)
Add'l Retained Treasury Stock
Paid-in Earnings --------------
Capital (Deficit) Shares Amt Total
------- --------- ------ --- -----
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1991 $54,587 $(276,639) - - $(222,030)
Net loss - (21,750) - - (21,750)
Vesting of Deferred Shares 6,503 - - - 6,503
Exercise of Class A Warrants - - - - -
Issuance of Common Stock 98,516 - - - 98,543
Conversion of Class B
Common Stock to Class A
Common Stock - - - - -
------- --------- ------ --- -----
Balance at December 31, 1992 159,606 (298,389) - - (138,734)
Net earnings - 14,335 - - 14,335
Exercise of Warrants 10,080 - - - 10,083
Issuance of Deferred Shares - - - - 1
Issuance of Class A Common
Stock 90,062 - - - 90,075
Conversion of Class B and
Class C Common Stock to
Class A Common Stock - - - - -
------- --------- ------ --- -----
Balance at December 31, 1993 259,748 (284,054) - - (24,240)
Net earnings - 33,213 - - 33,213
Issuance of Class A Common
Stock 345 - - - 346
Conversion of Class B
Common Stock to Class A
Common Stock - - - - -
Treasury Stock acquired - - 1,304 (34,844) (34,844)
------- --------- ------ --- -----
Balance at December 31, 1994 $260,093 $(250,841) 1,304 $(34,844) $(25,525)
======= ========= ====== ==== =====
See accompanying Notes to Consolidated Financial Statements
</TABLE>
F-4
</page>
<PAGE>
<TABLE>
<CAPTION>
INFINITY BROADCASTING CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Years Ended December 31,
------------------------
1992 1993 1994
---- ---- ----
(Dollars In Thousands)
<S> <C> <C> <C>
Net cash flow from operating activities:
Net earnings (loss)...................... $ (21,750) $ 14,335 $ 33,213
Extraordinary items...................... 12,318 - -
Depreciation and amortization............ 28,926 38,853 46,606
Amortization of deferred financing costs. 1,898 1,330 2,338
Vesting of deferred shares............... 6,503 - -
--------- -------- --------
27,895 54,518 82,157
Increase in receivables.................... (11,468) (14,867) (19,300)
Decrease (increase) in other current assets 97 (897) 2,442
Increase (decrease) in accounts payable
and accrued expenses..................... 3,023 3,906 6,550
Increase (decrease) in accrued interest.... (3,399) 821 1,829
Other, net................................. (4) (700) 266
--------- -------- --------
Net cash flow from operating activities 16,144 42,781 73,944
--------- -------- --------
Investing activities:
Capital expenditures..................... 1,300 1,901 1,606
Acquisitions:
Property and equipment................. 1,000 4,000 5,920
Intangibles............................ 73,476 117,372 206,725
Less liabilities....................... (2,166) (2,430) (10,331)
--------- -------- --------
Net cash used for investing activities..... 73,610 120,843 203,920
--------- -------- --------
Cash provided (required) before
financing activities................... (57,466) (78,062) (129,976)
========= ======== ========
Financing activities:
Borrowings under debt agreements......... 421,000 126,000 230,000
Reduction of debt........................ (446,513) (141,563) (63,312)
Proceeds from issuance of stock.......... 98,543 100,159 346
Premium paid for bond buyback............ (4,902) - -
Deferred financing costs................. (12,550) - (5,607)
Repurchase of Class A Common Stock....... - - (34,844)
Other, net............................... - - 1,200
--------- -------- --------
Net cash provided by (used for)
financing activities..................... 55,578 84,596 127,783
Decrease (increase) in cash and
cash equivalents......................... 1,888 (6,534) 2,193
--------- -------- --------
Total cash provided by (used for)
financing activities..................... $ 57,466 $ 78,062 $ 129,976
========= ======== =========
</TABLE>
See accompanying Notes to Consolidated Financial Statements
F-5
</PAGE>
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1. Summary of Significant Accounting Policies
(a) Principles of Consolidation
The consolidated financial statements include the accounts of the Company
and its subsidiaries, which are wholly owned and are all involved in radio
broadcasting. All significant intercompany balances and transactions have
been eliminated in consolidation.
(b) Revenue Recognition
Revenues are recognized when advertisements are aired.
(c) Property and Equipment
Depreciation is provided on a straight line basis for financial statement
purposes. The estimated useful life for machinery and equipment is 3-10
years and 10 years for furniture and fixtures. Leasehold improvements are
amortized over the terms of the leases.
(d) Intangible Assets
Intangible assets represent the excess of the cost of acquisitions over
the values assigned to net tangible assets. In accordance with Accounting
Principles Board Opinion No. 17, substantially all of these intangible assets
are being amortized over periods of 3 to 40 years. The Company periodically
evaluates the value of its intangible assets and if the costs of such assets
are in excess of associated expected operating cash flows, the related assets
are written down to fair value.
(e) Income Taxes
The Company and its subsidiaries file a consolidated Federal income tax
return.
Effective January 1, 1993, the Company implemented Statement of Financial
Accounting Standards No. 109 (FAS 109), "Accounting for Income Taxes" which
requires the use of the asset and liability method of financial accounting and
reporting for income taxes. Under FAS 109, deferred income taxes reflect the
impact of temporary differences between the amount of assets and liabilities
recognized for financial reporting purposes and the amounts recognized for tax
purposes.
(f) Earnings Per Share
Earnings (loss) per common share are based on the weighted average number
of common shares and common equivalent shares (where inclusion of such
equivalent shares would not be anti-dilutive) outstanding during the year.
(g) Cash Equivalents
Cash equivalents include certificates of deposit and commercial paper
with maturities of one month or less.
F-6
</PAGE>
<PAGE>
Note 2. Public Stock Offerings
On February 5, 1992, the Company and certain holders of warrants
exercisable for shares of the Company's Class A Common Stock, through an
initial public offering (the "Common Stock IPO") sold 13,788,826 shares of
Class A Common Stock, resulting in net proceeds to the Company of
approximately $98.5 million. As a result of the Company's Common Stock IPO,
the Company in the First Quarter of 1992 recorded a non-recurring non-cash
charge of approximately $6,503,000, resulting from the issuance in 1990 of
approximately 836,107 deferred shares of the Company's Common Stock to
management.
On May 13, 1993, the Company and certain holders of warrants exercisable
for shares of the Company's Class A Common Stock sold through a public
offering 8,148,814 shares of Class A Common Stock, resulting in net proceeds
to the Company of approximately $100 million.
On August 9, 1993, the Company declared a three-for-two stock
split in the form of a stock dividend payable on August 16, 1993 to
shareholders of record at the close of business on August 9, 1993. Effective
November 12, 1993, the Company declared another three-for-two stock split in
the form of a stock dividend payable on November 19, 1993 to shareholders of
record at the close of business on November 12, 1993. During 1993, in
connection with these stock splits, the Company increased the number of
authorized shares of its Class A Common Stock to 75,000,000, Class B Common
Stock to 17,500,000 and Class C Common Stock to 30,000,000. The accompanying
consolidated financial statements reflect the effect of the stock dividends.
On December 7, 1993, certain merchant banking partnerships affiliated
with Lehman Brothers Inc. and certain officers of the Company sold in a
secondary offering 5,550,000 shares of Class A Common Stock.
Note 3. Acquisitions
In April 1992, the Company acquired WFAN-AM, a radio station serving
New York City, for approximately $70 million, plus costs.
In February 1993, the Company acquired the assets of WZGC-FM (Atlanta),
WZLX-FM (Boston) and WUSN-FM (Chicago) from Cook Inlet Radio Partners, L.P.
and Cook Inlet Radio License Partnership, L.P. for a total purchase price of
approximately $100 million, plus costs. In September 1993, the Company
acquired WIP-AM, an all-sports radio station serving Philadelphia, from
Spectacor Broadcasting, L.P. for approximately $17.4 million, plus costs.
In February 1994, the Company acquired Los Angeles radio station KRTH-FM
from Beasley FM Acquisitions Corp. for approximately $116 million, plus costs.
In June 1994, the Company acquired Washington, D.C. radio stations WPGC-AM/FM
from Cook Inlet Radio Partners, L.P. and Cook Inlet Radio License Partnership,
L.P. for approximately $61 million, plus assumption of certain liabilities and
costs. In June 1994, the Company acquired Detroit radio station WXYT-AM from
Fritz Broadcasting, Inc. for approximately $23 million, plus costs.
The above acquisitions have been accounted for by the purchase method of
accounting. The purchase price has been allocated to the assets acquired,
principally intangible assets, and the liabilities assumed based on their
estimated fair values at the date of acquisition. The excess of purchase
price over the estimated fair values of the net assets acquired has been
recorded as goodwill.
F-7
</PAGE>
<PAGE>
Note 3. Acquisitions --- (Continued)
The operating results of these acquisitions are included in the Company's
consolidated results of operations from the date of acquisition. The
following unaudited pro forma summary presents the consolidated results of
operations as if the acquisitions had occurred as of the beginning of 1993 and
1994, after giving effect to certain adjustments, including amortization of
intangible assets and interest expense on the acquisition debt. These pro
forma results have been prepared for comparative purposes only and do not
purport to be indicative of what would have occurred had the acquisitions been
made as of those dates or of results which may occur in the future.
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------
1993 1994
---- ----
(Unaudited)
<S> <C> <C>
Net revenues. . . . . . . . . . . . . . . . . . $252,748 $287,006
Net earnings. . . . . . . . . . . . . . . . . . 9,312 32,778
Net earnings per common share . . . . . . . . . .23 .73
</TABLE>
On September 12, 1994, the Company entered into an agreement to acquire
Dallas/Ft. Worth radio station KLUV-FM from TK Communications, Inc. for
approximately $51 million. The purchase price will be funded by borrowings
under the Credit Agreement. The acquisition is subject to FCC approval.
On February 17, 1993, the Company entered into an agreement to manage the
business and operations of Unistar Communications Group, Inc. ("UCG") and its
subsidiaries. UCG is the parent of Unistar Radio Networks, Inc. ("Unistar"),
the country's fourth-largest provider of radio network programming services.
On February 3, 1994, the Company, Unistar and Westwood One, Inc. ("Westwood
One") completed the purchase by Westwood One of the radio network business of
Unistar for approximately $101.3 million. Westwood One is the nation's largest
producer and distributor of nationally sponsored radio programs. In
connection with the transaction, an affiliate of the Company received 5
million newly issued shares of common stock of Westwood One for $3 per share
(which represents approximately 16.13% of the issued and outstanding capital
stock of Westwood One) and an option to purchase an additional 3 million
shares of Westwood One's common stock at a purchase price of $3 per share,
subject to certain vesting requirements. In connection with the transactions,
the Company's Chief Executive Officer and Chief Financial Officer became the
Chief Executive Officer and Chief Financial Officer, respectively, of Westwood
One pursuant to a Management Agreement between the Company and Westwood One.
Under the management agreement, the Company will receive a base management fee
plus a bonus based on achieving cash flow targets and additional warrants to
acquire up to 1.5 million shares of Westwood One's Common Stock at a purchase
price from $3 to $5 per share in the event that Westwood One's Common Stock
trades above certain target price levels. In September 1994, pursuant to such
provision, the Company received a warrant to purchase 500,000 shares of
Westwood One's Common Stock at an exercise price of $3 per share.
F-8
</PAGE>
<PAGE>
Note 4. Property and Equipment
A summary of property and equipment, at cost, for the years ended
December 31, 1993 and 1994 follows:
<TABLE>
<CAPTION>
1993 1994
---- ----
(In Thousands)
<S> <C> <C>
Machinery, equipment, and fixtures . . . . . . . $19,882 $23,765
Land, buildings and improvements . . . . . . . . 8,199 9,252
------- -------
$28,081 $33,017
======= =======
</TABLE>
For the years ended December 31, 1992, 1993 and 1994 depreciation expense was
$3,934,000, $4,791,000 and $3,983,000.
NOTE 5. Long-Term Debt
Long-term debt at December 31, 1993 and 1994 consists of the following:
<TABLE>
<CAPTION>
1993 1994
---- ----
(In Thousands)
<S> <C> <C>
Bank Borrowings(a). . . . . . . . . . . . . . . . . $165,062 $331,750
10 3/8% Subordinated Debentures due 2002 (b). . . . 200,000 200,000
-------- --------
$365,062 $531,750
Less current portion. . . . . . . . . . . . . . . . (22,312) -
-------- --------
$342,750 $531,750
======== ========
</TABLE>
(a) On December 22, 1994, the Company and its subsidiaries amended and
restated its existing Credit Agreement to provide for aggregate
borrowings of up to $700 million, including an acquisition facility
of $250 million. As of December 31, 1994, the Company had outstanding
borrrowings of approximately $332 million and had additional borrowings
available under the facility of approximately $368 million.
Under the terms of a Security Agreement among the Company, its
subsidiaries, and one of the banks acting as collateral agent,
substantially all of the assets of the Company and its subsidiaries,
as well as the stock of the Company's subsidiaries, are pledged to
secure borrowings under the Credit Agreement.
The Credit Agreement provides for quarterly principal payments beginning
September 1998, and also permits voluntary prepayments in whole or in
part at any time.
Under the Credit Agreement, interest is payable quarterly, based on the
(i) prime rate or (ii) London Interbank Offer Rate.
F-9
</PAGE>
<PAGE>
Note 5. Long-Term Debt--(Continued)
In the normal course of business, the Company enters into a variety of
interest rate protection agreements, options and swaps, in order to
limit its exposure due to adverse fluctuations in interest rates.
These instruments are executed with credit worthy financial
institutions. As a matter of policy the Company does not engage in
derivatives trading. Generally, payments and receipts associated with
financial instruments used to manage interest rate risk are recognized
along with the effects of associated transactions.
As of December 31, 1994, the Company has entered into various interest
rate protection agreements under which the Company's interest rate on
$130 million of borrowings under the Credit Agreement is fixed at between
4.8% and 6% per annum, plus applicable margin.
(b) At December 31, 1994, the fair value of the Company's 10 3/8% Senior
Subordinated Notes was estimated to be $202,500,000 based on the quoted
market prices for the same issue.
The scheduled maturities of long-term debt for the next five years and
after are as follows:
<TABLE>
<CAPTION>
Year Ending December Amount
(In Thousands)
<S> <C>
1995 . . . . . . . . . . . . . . . . . .$ 0
1996 . . . . . . . . . . . . . . . . . . 0
1997 . . . . . . . . . . . . . . . . . . 0
1998 . . . . . . . . . . . . . . . . . . 37,500
1999 . . . . . . . . . . . . . . . . . . 45,000
After 1999 . . . . . . . . . . . . . . . 449,250
_______
$ 531,750
=======
</TABLE>
For years ended 1992, 1993 and 1994, the Company paid cash for interest
of $40,891,000, $34,625,000 and $40,522,000, respectively.
Note 6. Employee and Other Post Retirement Benefit Plans
The Company has a qualified 401(k) profit sharing plan covering
substantially all of its non-union full-time employees. For the years ended
December 31, 1992, 1993 and 1994, no contributions to this plan were made by
the Company.
The Company does not provide any post retirement health care and life
insurance benefits to its employees and, accordingly, has no liabilities for
such benefits.
Note 7. Income Taxes
The provision for income taxes for the years ended December 31, 1992,
1993 and 1994, consisting of current state and local taxes, was $106,000,
$606,000 and $890,000, respectively. No federal income taxes were provided in
1992, 1993 and 1994 as a result of net losses incurred and available net loss
carryforwards.
F-10
</PAGE>
<PAGE>
Note 7. Income Taxes --- (Continued)
At December 31, 1994, the Company had net operating loss carryforwards
for federal income tax purposes which expire from 2005 to 2009 of
approximately $70 million.
As discussed in Note 1, the Company adopted FAS No. 109 as of
January 1, 1993. There was no effect on the consolidated balance sheet
as of December 31, 1993 of implementing FAS 109, nor was there any effect
during 1994, as the value of the deferred tax asset resulting from the
net operating loss carryforwards was offset by a valuation allowance of
equal amount.
For the years ended December 31, 1992, 1993 and 1994, the Company paid
cash for income taxes of $714,000, $135,000 and $429,000, respectively.
Note 8. Employee Stock Plans
Employee Stock Option Plan. The Company's 1988 Employee Stock Option
Plan as amended provides for a grant of options to purchase 4,664,350 shares
of the Company's Class A Common Stock and 787,500 shares of Class B Common
Stock. The options are exercisable in equal amounts generally over five years
from the date of grant. At December 31, 1993 and 1994, options for 905,981
and 1,205,549 shares, respectively, of Class A Common Stock were exercisable.
Employee Deferred Share Plan. The Deferred Share Plan permits the grant
of up to 240,641 Class A Deferred Shares and 782,969 Class B Deferred Shares
to executives or other key employees of the Company.
The following is a table summarizing the changes during the years ended
December 31, 1993 and 1994 in options and deferred shares outstanding:
<TABLE>
<CAPTION>
Class A Common Stock
--------------------
Deferred Exercise
Shares and Price Per
Options Share
---------- ---------
<S> <C> <C>
Outstanding as of December 31, 1992................ 1,651,500 $.001-7.78
Granted/Issued..................................... 963,750 8.78-26.00
Canceled........................................... - -
Exercised.......................................... (173,900) .133-8.78
---------- ----------
Total outstanding as of December 31,1993 2,441,350
Granted/Issued..................................... 1,028,142 21.25-28.50
Canceled........................................... (6,750) 7.78
Exercised.......................................... (245,881) .133-8.78
---------- ----------
Total outstanding as of December 31, 1994 3,216,861
==========
</TABLE>
In addition, the Company issued 112,500 and 75,000 options to purchase
shares of Class B Common Stock during 1993 and 1994, respectively.
F-11
</page>
<PAGE>
NOTE 9. Stockholders' Equity
Each share of Class A Common Stock and each share of Class C Common Stock
is entitled to one vote per share. Each share of Class B Common Stock is
generally entitled to ten votes per share. Shares of Class B Common Stock and
Class C Common Stock, at the option of the holder, may be converted at any
time into an equal number of shares of Class A Common Stock. Each share of
Class B Common Stock and Class C Common Stock automatically converts into one
share of Class A Common Stock upon the sale, gift, or other transfer of such
share to any person other than an associate of the Company (as defined) and
upon certain other events.
During 1988, the Company issued options with an exercise price of $.027
per share to an officer of the Company to purchase 2,107,998 shares of the
Company's Class B Common Stock. During 1993 options to purchase 134,942
shares were exercised.
The Company has reserved 32,439 shares of Class A Common Stock, 2,126,807
shares of Class B Common Stock and 8,935,526 shares of Class C Common Stock
for issuance upon the exercise of certain warrants and options outstanding as
of December 31, 1994.
Note 10. Related Party Transactions
The Company leases office space from an affiliate which is owned 70% by
certain stockholders. The lease expires on December 31, 1998 and provides for
an annual rent of $145,380 subject to certain annual adjustments.
As of December 31, 1994, the Company had accounts receivable from
Westwood One amounting to approximately $4,005,000.
Note 11. Extraordinary Items
During 1992, the Company called for the redemption of $98,000,000 of the
14.25% Subordinated Discount Debentures and also entered into a new credit
agreement which replaced its prior bank credit agreement, resulting in an
extraordinary loss of $12,318,000.
Note 12. Commitments and Contingencies
The Company and its subsidiaries occupy certain office space and
transmitting facilities under lease agreements expiring at various dates
through 2008. Management expects that in the normal course of business,
leases that expire will be renewed or replaced by other leases. Most leases
provide for escalation of rent based on increases in the Consumer Price Index
and/or real estate taxes.
F-12
</PAGE>
<PAGE>
Note 12. Commitments and Contingencies ----- (Continued)
The following is a summary of the future minimum rental commitments under
existing leases:
<TABLE>
<CAPTION>
Year Ending December 31, Amount
________________________ ______
(In Thousands)
<S> <C>
1995 . . . . . . . . . . . . . . . . . . $ 4,482
1996 . . . . . . . . . . . . . . . . . . 4,296
1997 . . . . . . . . . . . . . . . . . . 3,408
1998 . . . . . . . . . . . . . . . . . . 3,247
1999 . . . . . . . . . . . . . . . . . . 2,834
After 1999 . . . . . . . . . . . . . . . 7,439
-------
$25,706
=======
</TABLE>
Rent expense applicable to such leases amounted to approximately
$2,354,000, $3,079,000 and $3,876,000 for the years ended December 31, 1992,
1993 and 1994, respectively.
At December 31, 1994, the Company is committed to the purchase of
broadcast rights for various sports events and other programming including
on-air talent, aggregating approximately $69.2 million. The aggregate
payments related to these commitments during the next five years are as
follows:
<TABLE>
Amount
______
(In Thousands)
<S> <C>
1995 . . . . . . . . . . . . . . . . . . $29,305
1996 . . . . . . . . . . . . . . . . . . 13,407
1997 . . . . . . . . . . . . . . . . . . 11,866
1998 . . . . . . . . . . . . . . . . . . 8,547
1999 . . . . . . . . . . . . . . . . . . 6,067
-------
$69,192
=======
</TABLE>
Note 13. Intangible and Other Assets
Intangible assets at cost, as of December 31, 1993 and 1994, include:
<TABLE>
<CAPTION>
1993 1994
---- ----
(In Thousands)
<S> <C> <C>
FCC Licenses. . . . . . . . . . . . . . . . . . $106,858 $318,671
Goodwill. . . . . . . . . . . . . . . . . . . . 152,724 152,724
Covenants not to compete. . . . . . . . . . . . 60,000 60,000
Favorable leasehold interest. . . . . . . . . . 30,542 30,742
-------- --------
$350,124 $562,137
======== ========
</TABLE>
For the years ended December 31, 1992, 1993 and 1994 amortization expense
was $24,992,000, $34,062,000 and $42,623,000.
Other assets include principally deferred financing costs and are
amortized over the term of the financing.
F-13
</PAGE>
<PAGE>
Note 14. Quarterly Financial Data (Unaudited)
<TABLE>
<CAPTION>
First Second Third Fourth
Quarter Quarter Quarter Quarter Year
------- ------- ------- ------- ----
(In Thousands Except Per Share Amounts)
1994
<S> <C> <C> <C> <C> <C>
Net revenues. . . . . . . . $48,183 $68,694 $74,641 $82,602 $274,120
Station operating expenses. 30,362 33,501 37,469 41,917 143,249
Operating income. . . . . . 6,201 22,344 23,533 26,554 78,632
Net earnings (loss) . . . . (3,864) 11,390 11,550 14,137 33,213
Net earnings (loss) per share (0.09) 0.25 0.26 0.32 0.74
Dividends per share . . . . - - - - -
1993
Net revenues. . . . . . . . $35,165 $53,036 $55,156 $61,165 $204,522
Station operating expenses. 22,797 26,029 28,645 32,130 109,601
Operating income. . . . . . 3,026 15,245 15,078 17,883 51,232
Net earnings (loss) . . . . (6,430) 5,684 5,994 9,087 14,335
Net earnings (loss) per share (0.20) 0.14 0.13 0.20 0.35
Dividends per share . . . . - - - - -
1992
Net revenues. . . . . . . . $23,372 $40,250 $41,702 $44,906 $150,230
Station operating expenses. 15,639 19,524 21,893 24,651 81,707
Operating income. . . . . . 1,693 11,661 10,539 11,522 35,415
Net earnings (loss) . . . . (22,826)(a) 1,179 (2,557)(a) 2,454 (21,750)
Net earnings (loss) per share (0.74)(a) 0.03 (0.07)(a) 0.07 (0.69)
Dividends per share . . . . - - - - -
__________________________
<FN>
(a) Amount includes extraordinary loss related to repayment of debt of
$8,277,000 in the first quarter of 1992 and $4,041,000 in the third
quarter of 1992.
</TABLE>
F-14
</PAGE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE VIII
INFINITY BROADCASTING CORPORATION AND SUBSIDIARIES
Valuation and Qualifying Accounts
Years Ended December 31, 1992, 1993, and 1994
Column A Column B Column C Column D Column E
__________________ ____________ ___________ ___________ ___________ ___________
Balance at Charged to Charged to Balance at
Beginning Costs and Other End of
Description of Period Expenses Accounts Deductions Period
__________________ ____________ ___________ ___________ ___________ ___________
(In Thousands)
<S> <C> <C> <C> <C> <C>
1992
Allowance for
Doubtful
Accounts . . . $ 892 $ 556 $ - $566 $ 882
1993
Allowance for
Doubtful
Accounts . . . $ 882 $ 852 $ - $707 $1,027
1994
Allowance for
Doubtful
Accounts . . . $1,027 $1,441 $ - $933 $1,535
</TABLE>
F-15
</PAGE>
<PAGE>
EXECUTION COUNTERPART
[COMPOSITE CONFORMED COPY]
===============================================================================
INFINITY BROADCASTING CORPORATION
$700,000,000
_____________________________
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 22, 1994
______________________________
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
BANK OF AMERICA ILLINOIS,
BANK OF MONTREAL,
THE BANK OF NEW YORK,
CHEMICAL BANK,
COMPAGNIE FINANCI RE DE CIC ET DE L'UNION EUROPEENNE,
THE FIRST NATIONAL BANK OF BOSTON and
NATIONAL WESTMINSTER BANK USA,
as Co-Agents
CHEMICAL BANK,
as Collateral Agent
=============================================================================
[Exhibits B, C, D and J are photocopies of the Subsidiary Loan
Agreements, Guarantee Agreement, Security Agreement, and
Assignment Agreement as executed and delivered. Exhibits E-1
E-2 and F are photocopies of the opinions as delivered.]
</page>
<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
1.01 Certain Defined Terms. . . . . . . . . . . . . . . . . . . . 2
1.02 Accounting Terms and Determinations. . . . . . . . . . . . . 35
1.03 Types and Classes of Loans and Commitments . . . . . . . . . 36
Section 2. Commitments. . . . . . . . . . . . . . . . . . . . . . . . . 36
2.01 Syndicated Loans . . . . . . . . . . . . . . . . . . . . . . 36
2.02 Borrowings of Syndicated Loans . . . . . . . . . . . . . . . 40
2.03 Money Market Loans . . . . . . . . . . . . . . . . . . . . . 40
2.04 Changes of Commitments . . . . . . . . . . . . . . . . . . . 45
2.05 Commitment Fees. . . . . . . . . . . . . . . . . . . . . . . 47
2.06 Lending Offices. . . . . . . . . . . . . . . . . . . . . . . 48
2.07 Several Obligations; Remedies Independent. . . . . . . . . . 48
2.08 Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
2.09 Conversions or Continuations of Syndicated
Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . 49
2.10 Limitation on Interest Periods . . . . . . . . . . . . . . . 50
Section 3. Payments of Principal and Interest . . . . . . . . . . . . . 50
3.01 Repayment of Loans . . . . . . . . . . . . . . . . . . . . . 50
3.02 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 52
3.03 Optional Prepayments . . . . . . . . . . . . . . . . . . . . 54
3.04 Mandatory Prepayments. . . . . . . . . . . . . . . . . . . . 55
Section 4. Payments; Pro Rata Treatment; Computations;
Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
4.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 59
4.02 Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . 61
4.03 Computations . . . . . . . . . . . . . . . . . . . . . . . . 62
4.04 Minimum Amounts. . . . . . . . . . . . . . . . . . . . . . . 62
4.05 Certain Notices. . . . . . . . . . . . . . . . . . . . . . . 62
4.06 Non-Receipt of Funds by the Administrative
Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 5. Yield Protection, Etc. . . . . . . . . . . . . . . . . . . . 65
5.01 Additional Costs . . . . . . . . . . . . . . . . . . . . . . 65
5.02 Limitation on Eurodollar Loans . . . . . . . . . . . . . . . 67
5.03 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . 68
5.04 Treatment of Affected Loans. . . . . . . . . . . . . . . . . 68
5.05 Compensation . . . . . . . . . . . . . . . . . . . . . . . . 69
5.06 U.S. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 70
5.07 Replacement or Prepayment of Certain Banks . . . . . . . . . 73
(i)
</page>
<PAGE>
Section 6. Conditions Precedent . . . . . . . . . . . . . . . . . . . . 74
6.01 Effective Date and Conversion of Existing
Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . 74
6.02 Acquisition Loans. . . . . . . . . . . . . . . . . . . . . . 76
6.03 Initial and Subsequent Loans . . . . . . . . . . . . . . . . 77
Section 7. Representations and Warranties . . . . . . . . . . . . . . . 77
7.01 Corporate Existence. . . . . . . . . . . . . . . . . . . . . 78
7.02 Financial Condition. . . . . . . . . . . . . . . . . . . . . 78
7.03 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 78
7.04 No Breach. . . . . . . . . . . . . . . . . . . . . . . . . . 79
7.05 Action . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
7.06 Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . 79
7.07 Use of Loans . . . . . . . . . . . . . . . . . . . . . . . . 80
7.08 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
7.09 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
7.10 Investment Company Act . . . . . . . . . . . . . . . . . . . 81
7.11 Public Utility Holding Company Act . . . . . . . . . . . . . 81
7.12 Credit Agreements. . . . . . . . . . . . . . . . . . . . . . 81
7.13 Environmental Laws . . . . . . . . . . . . . . . . . . . . . 81
7.14 Subsidiaries, Etc. . . . . . . . . . . . . . . . . . . . . . 82
7.15 Capitalization . . . . . . . . . . . . . . . . . . . . . . . 82
7.16 Assets of the Company. . . . . . . . . . . . . . . . . . . . 82
7.17 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . 82
7.18 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . 83
7.19 Security Agreement . . . . . . . . . . . . . . . . . . . . . 83
7.20 Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . 83
Section 8. Covenants of the Company . . . . . . . . . . . . . . . . . . 83
8.01 Financial Statements . . . . . . . . . . . . . . . . . . . . 84
8.02 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 88
8.03 Existence, Etc.. . . . . . . . . . . . . . . . . . . . . . . 89
8.04 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . 89
8.05 Capital Expenditures . . . . . . . . . . . . . . . . . . . . 89
8.06 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
8.07 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 90
8.08 Investments and Joint Ventures . . . . . . . . . . . . . . . 92
8.09 Restricted Payments. . . . . . . . . . . . . . . . . . . . . 94
8.10 Debt Ratios. . . . . . . . . . . . . . . . . . . . . . . . . 95
8.11 Interest Coverage Ratio; Total Pro Forma Debt
Service Coverage Ratio . . . . . . . . . . . . . . . . . . 95
8.12 Prohibition of Fundamental Changes . . . . . . . . . . . . . 95
8.13 Interest Rate Protection Agreements. . . . . . . . . . . . . 98
8.14 Lines of Business. . . . . . . . . . . . . . . . . . . . . . 99
8.15 Transactions With Affiliates . . . . . . . . . . . . . . . . 99
8.16 Issuance of Capital Stock. . . . . . . . . . . . . . . . . .100
8.17 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . .100
8.18 Certain Obligations Respecting Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . .101
8.19 Additional Subsidiary Guarantors . . . . . . . . . . . . . .101
8.20 Modifications of Certain Documents . . . . . . . . . . . . .102
(ii)
</page>
<PAGE>
8.21 Unrestricted Subsidiaries; Maintenance of
Separate Corporate Identity. . . . . . . . . . . . . . . .102
8.22 Subordinated Debt. . . . . . . . . . . . . . . . . . . . . .103
Section 9. Events of Default. . . . . . . . . . . . . . . . . . . . . .104
Section 10. The Agents. . . . . . . . . . . . . . . . . . . . . . . . .108
10.01 Appointment, Powers and Immunities. . . . . . . . . . . . .108
10.02 Reliance by Each Agent. . . . . . . . . . . . . . . . . . .110
10.03 Defaults. . . . . . . . . . . . . . . . . . . . . . . . . .110
10.04 Rights as a Bank. . . . . . . . . . . . . . . . . . . . . .111
10.05 Indemnification . . . . . . . . . . . . . . . . . . . . . .111
10.06 Non-Reliance on Agents and Other Banks. . . . . . . . . . .112
10.07 Failure to Act. . . . . . . . . . . . . . . . . . . . . . .112
10.08 Resignation or Removal of Agents. . . . . . . . . . . . . .113
10.09 Collateral Sub-Agents . . . . . . . . . . . . . . . . . . .113
Section 11. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . .113
11.01 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . .113
11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . .114
11.03 Expenses, Etc.. . . . . . . . . . . . . . . . . . . . . . .114
11.04 Amendments, Etc.. . . . . . . . . . . . . . . . . . . . . .115
11.05 Successors and Assigns. . . . . . . . . . . . . . . . . . .117
11.06 Bank Assignments and Participations . . . . . . . . . . . .117
11.07 Survival. . . . . . . . . . . . . . . . . . . . . . . . . .119
11.08 Captions. . . . . . . . . . . . . . . . . . . . . . . . . .119
11.09 Counterparts. . . . . . . . . . . . . . . . . . . . . . . .120
11.10 Governing Law; Submission to Jurisdiction . . . . . . . . .120
11.11 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . .120
11.12 Treatment of Certain Information;
Confidentiality . . . . . . . . . . . . . . . . . . . . .120
11.13 Senior Indebtedness . . . . . . . . . . . . . . . . . . . .121
11.14 Obligations of Banks under Subsidiary Loan
Agreements. . . . . . . . . . . . . . . . . . . . . . . .121
(iii)
</PAGE>
<PAGE>
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 Infinity Acquisition Loan Note
EXHIBIT A-3 - Form of Revolving Credit Note
EXHIBIT A-4 - Form of Subsidiary Loan Note
EXHIBIT A-5 - Form of Money Market 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
EXHIBIT K-1 - Form of Money Market Quote Request
EXHIBIT K-2 - Form of Money Market Quote<PAGE>
(iv)
</page>
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as
of December 22, 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 AMERICA ILLINOIS, an Illinois
____________________
banking corporation, BANK OF MONTREAL, a bank organized under the
laws of Canada, THE BANK OF NEW YORK, a New York banking
corporation, CHEMICAL BANK, a New York banking corporation,
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE, a company
duly organized under and by virtue of the law of France, THE
FIRST NATIONAL BANK OF BOSTON, a national banking association,
and NATIONAL WESTMINSTER BANK USA, a national banking
association, 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 of the Banks and certain of the
Agents are parties to an Amended and Restated Credit Agreement
dated as of June 7, 1994 as amended by Amendment No. 1 thereto
dated as of November 15, 1994 (such Amended and Restated Credit
Agreement, as amended, 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
$470,000,000.
The Company wishes to amend and restate the Existing
Credit Agreement. Accordingly, the Company has requested and the
Banks and the Agents have agreed, 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 Second
Amended and Restated Credit Agreement (provided that (i) if the
________
Effective Date does not occur on or prior to December 31, 1994,
this Agreement shall terminate and be of no further force and
effect and the Existing Credit Agreement shall not be so amended
and restated, and (ii) the obligations of the Company referred to
Credit Agreement
________________
</page>
<PAGE>
- 2 -
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.
____________________________
1.01 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) the right or entitlement,
directly or indirectly, to (i) 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) in connection therewith, retain
25% or more 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 firm or
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
___________________________
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 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
Bank, the aggregate amount of the Acquisition Loan Commitments of
other 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 2.04
Credit Agreement
________________
</page>
<PAGE>
- 3 -
hereof or increased or reduced from time to time pursuant to said
Section 11.06(a)).
"Acquisition Loan Commitment Termination Date" shall
____________________________________________
mean the Quarterly Date occurring in June 1998.
"Acquisition Loans" shall mean Infinity Acquisition
_________________
Loans and Subsidiary Acquisition Loans.
"Acquisition Price" shall mean, with respect to any
_________________
Acquisition, the aggregate cash consideration required to be paid
or delivered by the Company and its Restricted Subsidiaries in
connection with such Acquisition, including the aggregate amount
of any advance payment, option payment, down payment or deposit
made in connection with such Acquisition and any brokerage
commissions or brokers', finders' or other fees and any amount
payable under any non-compete, employment, management, lease or
other agreement entered into by the Company or any of its
Restricted Subsidiaries in connection with such Acquisition to
the extent that either (a) such amount shall be payable on or
before the consummation of such Acquisition or (b) the obligation
to pay such consideration should, under GAAP, be classified as a
liability (other than merely as a current account payable or
current accrued expense) on the balance sheet of the Company or
such Restricted Subsidiary.
"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 the 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 one another.
Credit Agreement
________________
</page>
<PAGE>
- 4 -
"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
receive a credit pursuant to the terms of any Tax Allocation
Agreement) and its Restricted Subsidiaries during such period.
"Agreement" shall mean this Second 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 Second 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 Second 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 pursuant to Section 8.01(c) or
8.01(d) hereof; 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
Credit Agreement
________________
</page>
<PAGE>
- 5 -
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
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:
_________________
(a) with respect to Base Rate Loans, 0.500% at all
times when the Total Debt Ratio is greater than or equal to
Credit Agreement
________________
</page>
<PAGE>
- 6 -
5.25 to 1, 0.250% at all times when the Total Debt Ratio is
greater than or equal to 4.75 to 1 but less than 5.25 to 1,
and 0.0% at all times when the Total Debt Ratio is less than
4.75 to 1; and
(b) with respect to Eurodollar Loans, 1.500% at all
times when the Total Debt Ratio is greater than or equal to
5.25 to 1, 1.250% at all times when the Total Debt Ratio is
greater than or equal to 4.75 to 1 but less than 5.25 to 1,
1.000% at all times when the Total Debt Ratio is greater
than or equal to 4.25 to 1 but less than 4.75 to 1, 0.750%
at all times when the Total Debt Ratio is greater than or
equal to 3.75 to 1 but less than 4.25 to 1, 0.625% at all
times when the Total Debt Ratio is greater than or equal to
3.00 to 1 but less than 3.75 to 1, and 0.500% at all times
when the Total Debt Ratio is less than 3.00 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 to the Administrative Agent
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 to the Administrative Agent 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 so delivered to
the Administrative Agent, provided that in the event that the
________
Company shall fail to deliver to the Administrative Agent any
consolidated financial statements by the respective date required
pursuant to said Sections 8.01(c) or 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 to the Administrative Agent.
"Assignment Agreement" shall mean an Assignment and
____________________
Assumption Agreement substantially in the form of Exhibit J
hereto between the Company and a Restricted Subsidiary as
contemplated by Section 2.01(d)(ii) hereof, as the same shall be
modified and supplemented and in effect from time to time.
"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 1/2 of 1% and
____
(b) the Prime Rate for such day. Each change in any interest
Credit Agreement
________________
</page>
<PAGE>
- 7 -
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 Syndicated 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.
"Borrowers" shall mean, collectively, the Company and
_________
the Subsidiary Borrowers.
"Business Day" shall mean (a) any day on which
____________
commercial banks are not authorized or required to close in New
York City and (b) if such day relates to the giving of notices or
quotes in connection with a LIBOR Auction, or to a borrowing of,
a payment or prepayment of principal of or interest on, or an
Interest Period for, a Eurodollar Loan or a LIBOR Market Loan or
a notice by the Company with respect to any such borrowing,
payment, prepayment or Interest Period, or to a Continuation of
or a Conversion of or into a Eurodollar Loan or a notice by the
Company with respect to any such Continuation or Conversion, such
day shall also be 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).
"Class" shall have the meaning assigned to such term in
_____
Section 1.03 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as
____
amended from time to time.
Credit Agreement
________________
</page>
<PAGE>
- 8 -
"Collateral" shall mean the "Collateral" under and as
__________
defined in the Security Agreement.
"Commitments" shall mean, collectively, the Acquisition
___________
Loan Commitments and the Revolving Credit 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 2.09 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 2.09 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
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.
"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 to any other Person 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 or entitlement, directly or indirectly, to (i) use or
manage or otherwise exploit any Property of the Company or such
Restricted Subsidiary (whether now owned or hereafter acquired)
and (ii) retain 25% or more of the revenues or net profits
derived from such use or management or other exploitation;
provided that there shall be excluded from "Disposition" any of
________
the foregoing transactions involving (A) the granting of Liens
under and other dispositions by the Company or any Restricted
Subsidiary pursuant to the Security Agreement and (B) 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 any Restricted Subsidiary, (y) capital stock of
Credit Agreement
________________
</page>
<PAGE>
- 9 -
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 any
Restricted Subsidiary) in the ordinary course of business of the
Company or any Restricted Subsidiary and on ordinary business
terms. 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
Existing Loans to Loans hereunder and under the Subsidiary Loan
Agreements, as the case may be, set forth in Section 6.01 and
6.03 hereof shall have been satisfied or waived by such of the
Banks or Agents as are required for such purpose under this
Agreement.
"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
Credit Agreement
________________
</page>
<PAGE>
- 10 -
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.
"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 or any LIBOR Market 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 (in the
case of any Eurodollar Loan) or in an amount equal to $10,000,000
Credit Agreement
________________
</page>
<PAGE>
- 11 -
(in the case of any LIBOR Market Loan). If any Reference Bank
does not timely furnish such information for determination of any
Eurodollar Rate or LIBO Rate, the Administrative Agent shall
determine such rate on the basis of the information timely
furnished by the remaining Reference Banks.
"Eurodollar Loans" shall mean Syndicated 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 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 Guarantee Agreement" shall mean the Guarantee
____________________________
Agreement dated as of June 7, 1994 between the Company, the
Subsidiaries of the Company identified under the caption
"SUBSIDIARIES" on the signature pages thereof, and Chase, as
Administrative Agent, as heretofore modified and supplemented and
in effect immediately prior to the Effective Date.
"Existing Security Agreement" shall mean the Amended
___________________________
and Restated Security Agreement dated as of June 7, 1994 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.
Credit Agreement
________________
</page>
<PAGE>
- 12 -
"Existing Subsidiary Loan Agreements" shall mean,
___________________________________
collectively, (a) the Loan Agreement dated as of June 7, 1994
between HBC and Chase, as Administrative Agent for the lenders
holding loans to HBC thereunder, (b) the Loan Agreement dated as
of June 7, 1994 between Infinity of Boston and Chase, as
Administrative Agent for the lenders holding loans to Infinity of
Boston thereunder, (c) the Loan Agreement dated as of June 7,
1994 between Infinity of California and Chase, as Administrative
Agent for the lenders holding loans to Infinity of California
thereunder, and (d) the Loan Agreement dated as of June 7, 1994
between SBC and Chase, as Administrative Agent for the lenders
holding loans to SBC thereunder, in each case 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
and (c) as to which the time for filing any such request,
petition or 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.
Credit Agreement
________________
</page>
<PAGE>
- 13 -
"Fixed Rate Loans" shall mean Eurodollar Loans and, for
________________
purposes of Section 5 hereof, LIBOR Market Loans.
"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.
"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
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 an Amended and
___________________
Restated 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 the Company and each of the
_________
Restricted Subsidiaries in its capacity as a guarantor under the
Guarantee Agreement (including, without limitation, each
Restricted Subsidiary which pursuant to Section 8.19 hereof shall
hereafter become a party to the Guarantee Agreement and an
"Obligor" 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
Credit Agreement
________________
</page>
<PAGE>
- 14 -
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 an Amended and
_______________________
Restated Loan Agreement substantially in the form of Exhibit B
hereto between HBC and the Administrative Agent, as modified and
supplemented and in effect from time to time.
"HBC Term Loan Notes" shall mean the promissory notes
___________________
of HBC issued pursuant to the HBC Term Loan Agreement.
"HBC Term Loans" shall mean loans to HBC outstanding
______________
under the HBC Term Loan 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.
"Infinity Acquisition Loan Notes" shall mean the
_______________________________
promissory notes of the Company provided for by Section 2.08(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.
"Infinity Acquisition Loans" shall have the meaning
__________________________
assigned to such term in Section 2.01(b) hereof.
"Infinity Loans" shall mean, collectively, Infinity
______________
Term Loans, Infinity Acquisition Loans and Revolving Credit
Loans.
Credit Agreement
________________
</page>
<PAGE>
- 15 -
"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 Term Loan Agreement" shall mean an
______________________________________
Amended and Restated Loan Agreement substantially in the form of
Exhibit B hereto between Infinity of Boston and the
Administrative Agent, as modified and supplemented and in effect
from time to time.
"Infinity of Boston Term Loan Notes" shall mean the
__________________________________
promissory notes of Infinity of Boston issued pursuant to the
Infinity of Boston Term Loan Agreement.
"Infinity of Boston Term Loans" shall mean loans to
_____________________________
Infinity of Boston outstanding under the Infinity of Boston Term
Loan Agreement.
"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 Term Loan Agreement" shall mean
__________________________________________
an Amended and Restated Loan Agreement substantially in the form
of Exhibit B hereto between Infinity of California and the
Administrative Agent, as modified and supplemented and in effect
from time to time.
"Infinity of California Term Loan Notes" shall mean the
______________________________________
promissory notes of Infinity of California issued pursuant to the
Infinity of California Term Loan Agreement.
"Infinity of California Term Loans" shall mean loans to
_________________________________
Infinity of California outstanding under the Infinity of
California Term Loan Agreement.
"Infinity Term Loan Notes" shall mean the promissory
________________________
notes of the Company provided for by Section 2.08(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.
"Inter-Bank Assignment" shall have the meaning assigned
_____________________
to such term in Section 11.06(a) hereof.
"Interest Accrual Date" shall mean: (i) with respect to
_____________________
any Loan outstanding on the Effective Date that was converted
from an Existing Loan to a Loan pursuant to Section 2.01(a) or
Credit Agreement
________________
</page>
<PAGE>
- 16 -
2.01(c) hereof, the day immediately following the last day
through which interest has been paid on such Loan under the
Existing Credit Agreement or any Existing Subsidiary Loan
Agreement, as the case may be, and (ii) with respect to any
Acquisition Loan made to the Company which the Company thereafter
assigns to a Restricted Subsidiary as permitted by Section
2.01(d)(ii) hereof, the day immediately following the last day
through which interest has been paid on such Loan by the Company
pursuant to Section 3.02 hereof; provided that if on the
Effective Date or the effective date of any such assignment there
shall be outstanding or assigned 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 then outstanding or so assigned, 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):
(a) with respect to any Eurodollar Loan, each period
commencing on the date such Eurodollar Loan is made,
Continued 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 Class, with the approval of all of the Banks
holding Loans and/or Commitments of such Class) 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
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;
(b) with respect to any Set Rate Loan, the period
commencing on the date such Set Rate Loan is made and ending
on any Business Day at least seven days thereafter, as the
Company may select as provided in Section 2.03(b) hereof;
and
(c) with respect to any LIBOR Market Loan, the period
commencing on the date such LIBOR Market Loan is made and
ending on the numerically corresponding day in the first,
second, third, sixth, twelfth or any other calendar month
thereafter, as the Company may select as provided in Section
2.03(b) hereof, except that each Interest Period that
commences on the last Business Day of a calendar month (or
any day for which there is no numerically corresponding day
in the appropriate subsequent calendar month) shall end on
Credit Agreement
________________
</page>
<PAGE>
- 17 -
the last Business Day of the appropriate subsequent calendar
month.
Notwithstanding the foregoing: (i) no Interest Period for any
Term Loan or Acquisition Loan may commence before and end after
any Principal Payment Date for Loans of such Class unless, after
giving effect thereto, the aggregate principal amount of the
Loans of such Class 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 Class scheduled
to be outstanding after giving effect to the payments of
principal of such Loans required to be made on such Principal
Payment Date; (ii) no Interest Period for any Revolving Credit
Loan or any Money Market Loan made under the Revolving Credit
Commitments may commence before and end after any Revolving
Credit Commitment Reduction Date unless, after giving effect
thereto, the aggregate principal amount of Revolving Credit Loans
and Money Market Loans made under the Revolving Credit
Commitments having Interest Periods which end after such
Revolving Credit Commitment Reduction Date shall be equal to or
less than the aggregate amount of the Revolving Credit
Commitments scheduled to be in effect after giving effect to the
reduction in the Revolving Credit Commitments that will become
effective on such Revolving Credit Commitment Reduction Date;
(iii) no Interest Period for any Money Market Loan made under the
Acquisition Loan Commitments may end after the Acquisition Loan
Commitment Termination Date; (iv) 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 (v) not-
withstanding clauses (i), (ii) and (iii) above, no Interest
Period for any Loan (other than a Set Rate Loan) shall have a
duration of less than one month and, if the Interest Period for
any Eurodollar Loan or LIBOR Market Loan would otherwise be a
shorter period, such Loan shall not be available as a Eurodollar
Loan or LIBOR Market 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
Credit Agreement
________________
</page>
<PAGE>
- 18 -
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)
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.
"June 1998 Remaining Available Equity Issuance Amount"
____________________________________________________
shall have the meaning assigned to such term in the penultimate
sentence of Section 8.01 hereof.
"LIBO Margin" shall have the meaning assigned to such
___________
term in Section 2.03(c)(ii)(C) hereof.
"LIBO Rate" shall mean, for any LIBOR Market Loan, 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
the Interest Period for such Loan divided by (b) the result of
__________
(i) 1 minus (ii) the Reserve Requirement (if any) for such Loan
for such Interest Period.
"LIBOR Auction" shall mean a solicitation of Money
_____________
Market Quotes setting forth LIBO Margins based on the LIBO Rate
pursuant to Section 2.03 hereof.
"LIBOR Market Loans" shall mean Money Market Loans
__________________
interest rates on which are determined on the basis of LIBO Rates
pursuant to a LIBOR Auction.
"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
Credit Agreement
________________
</page>
<PAGE>
- 19 -
retention agreement (other than an operating lease) relating to
such Property.
"Loans" shall mean, collectively, Syndicated Loans and
_____
Money Market Loans.
"Majority Banks" shall mean, at any time, Banks holding
______________
at least 51% of the sum of (a) the aggregate outstanding
principal amount of the Term Loans, (b) (i) if the Acquisition
Loan Commitments are then in effect, the aggregate amount of such
Commitments (whether or not used) or (ii) if the Acquisition Loan
Commitments have expired or terminated, the aggregate outstanding
principal amount of the Loans (including Money Market Loans) made
under the Acquisition Loan Commitments and (c) (i) if the
Revolving Credit Commitments are then in effect, the aggregate
amount of such Commitments (whether used or unused) or (ii) if
the Revolving Credit Commitments have expired or terminated, the
aggregate outstanding principal amount of the Loans (including
Money Market Loans) made under the Revolving Credit Commitments.
"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
interest on the Loans or other amounts payable in connection
therewith.
"Money Market Borrowing" shall have the meaning
______________________
assigned to such term in Section 2.03(b) hereof.
"Money Market Loan Limit" shall have the meaning
_______________________
assigned to such term in Section 2.03(c)(ii) hereof.
"Money Market Loans" shall mean loans provided for by
__________________
Section 2.03 hereof.
"Money Market Notes" shall mean the promissory notes
__________________
provided for by Section 2.08(e) hereof and all promissory notes
delivered in substitution or exchange therefor, in each case as
Credit Agreement
________________
</PAGE>
<PAGE>
- 20 -
the same shall be modified and supplemented and in effect from
time to time.
"Money Market Quote" shall mean an offer in accordance
__________________
with Section 2.03(c) hereof by a Bank to make a Money Market Loan
with one single specified interest rate.
"Money Market Quote Request" shall have the meaning
__________________________
assigned to such term in Section 2.03(b) hereof.
"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.
"Notes" shall mean Syndicated Notes and Money Market
_____
Notes.
"Obligors" shall mean, collectively, the Borrowers and
________
the Guarantors.
"Other Pro Forma Interest" shall mean, for any period,
________________________
an aggregate amount equal to the interest for such period on the
aggregate principal amount of Indebtedness referred to in
Sections 8.07(b), 8.07(c) and 8.07(d) hereof which is outstanding
on the day immediately preceding such period, such interest to be
calculated with respect to any such Indebtedness at the
respective rates per annum as provided in (and calculated as
provided in) the respective instruments evidencing or governing
such Indebtedness; provided that interest on any such Indebted-
ness accruing 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 in effect with respect to such
Indebtedness 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 Additional Debt" shall have the meaning
_________________________
assigned to such term in Section 8.07(b) hereof.
"Permitted Liens" shall mean:
_______________
(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
Credit Agreement
________________
</PAGE>
<PAGE>
- 21 -
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;
(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;
Credit Agreement
________________
</PAGE>
<PAGE>
- 22 -
(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(d) hereof, provided
________
that the aggregate amount of the Indebtedness secured
thereby and incurred on and after the date hereof shall not
exceed $10,000,000 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 Subsidi-
aries by the Communications Act of 1934, as amended, or any
rules and regulations promulgated thereunder.
"Permitted Replacement Subordinated Debt" shall have
_______________________________________
the meaning assigned to such term in Section 8.07(c) hereof.
"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, 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
mandatory prepayment or otherwise), a rate per annum during the
period from and including the due date therefor to but excluding
the date such amount is paid in full equal to the lesser of (a)
2% plus the Base Rate as in effect from time to time plus the
____
Applicable Margin for Base Rate Loans (provided that, if the
________
amount so in default is principal of a Eurodollar Loan or a Money
Market 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
____
Credit Agreement
________________
</PAGE>
<PAGE>
- 23 -
interest rate for such Loan as provided in Section 3.02(a) hereof
and, thereafter, the rate provided for above in this definition),
and (b) 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 Infinity
Acquisition Loans, 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.
"Pro Forma Debt Service" shall mean, for any period,
______________________
the sum (without duplication) 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 plus (c) the aggregate amount of
reductions of the Revolving Credit Commitments scheduled to
become effective during such period pursuant to Section 2.04(c)
hereof.
"Pro Forma Interest" shall mean, for any period, the
__________________
sum (determined without duplication) of the following for such
period: (a) Senior Pro Forma Interest plus (b) 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.
"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.
Credit Agreement
________________
</PAGE>
<PAGE>
- 24 -
"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.
"Remaining Available Equity Issuance Amount" shall
__________________________________________
mean, as at any date of determination (the "Calculation Date"),
________________
(I) if the Calculation Date occurs on or prior to the Acquisition
Loan Commitment Termination Date, the sum of:
(a) the aggregate amount of all cash received by the
Company and its Restricted Subsidiaries in respect of all
Equity Issuances during the period commencing on the
Effective Date and ending on the Calculation Date (net of
expenses incurred by the Company and its Restricted
Subsidiaries in connection with such Equity Issuances) minus
_____
(b) the aggregate amount of cash Investments made by
the Company in Unrestricted Subsidiaries as permitted by
Section 8.08(h)(ii)(A) hereof during the period commencing
on the Effective Date and ending on the Calculation Date
minus
(c) the amount by which (i) the aggregate amount of
cash payments made in respect of repurchases of common stock
of the Company as permitted by Section 8.09(b)(ii)(A) hereof
during the period commencing on the Effective Date and
ending on the Calculation Date exceeds (ii) $150,000,000
_______
minus
_____
(d) the aggregate amount of Restricted Payments made
in cash as permitted by Section 8.09(c)(ii)(A) hereof during
the period commencing on the Effective Date and ending on
the Calculation Date minus
_____
Credit Agreement
________________
</PAGE>
<PAGE>
- 25 -
(e) the amount by which (i) the aggregate amount of
cash payments made in respect of Acquisitions made as
permitted by Sections 8.12(d) and 8.12(e) hereof during the
period commencing on the Effective Date and ending on the
Calculation Date exceeds (ii) the sum of (x) $250,000,000
_______
plus (y) the amount by which (I) Excess Cash Flow for the
____
period commencing on the Effective Date and ending on the
Calculation Date exceeds (II) the sum of (A) the Remaining
_______
Available Excess Cash Flow Amount on the Calculation Date
plus (B) the amount of any reduction made in determining the
____
Remaining Available Excess Cash Flow Amount as of the
Calculation Date by reason of clause (e) of the definition
of "Remaining Available Excess Cash Flow Amount"; and
(II) if the Calculation Date occurs after the Acquisition Loan
Commitment Termination Date, the sum of:
(a) the June 1998 Remaining Available Equity Issuance
Amount plus the aggregate amount of all cash received by the
____
Company and its Restricted Subsidiaries in respect of all
Equity Issuances during the period commencing on the day
immediately following the Acquisition Loan Commitment
Termination Date and ending on the Calculation Date (net of
expenses incurred by the Company and its Restricted
Subsidiaries in connection with such Equity Issuances) minus
_____
(b) the aggregate amount of cash Investments made by
the Company in Unrestricted Subsidiaries as permitted by
Section 8.08(h)(ii)(A) hereof during the period commencing
on the day immediately following the Acquisition Loan
Commitment Termination Date and ending on the Calculation
Date minus
_____
(c) the aggregate amount of cash payments made in
respect of repurchases of common stock of the Company as
permitted by Section 8.09(b)(ii)(A) hereof during the period
commencing on the day immediately following the Acquisition
Loan Commitment Termination Date and ending on the
Calculation Date minus
_____
(d) the aggregate amount of Restricted Payments made
in cash as permitted by Section 8.09(c)(ii)(A) hereof during
the period commencing on the day immediately following the
Acquisition Loan Commitment Termination Date and ending on
the Calculation Date minus
_____
(e) the aggregate amount of cash payments made in
respect of Acquisitions made as permitted by Sections
8.12(d) and 8.12(e) hereof during the period commencing on
the day immediately following the Acquisition Loan
Credit Agreement
________________
</PAGE>
<PAGE>
- 26 -
Commitment Termination Date and ending on the Calculation
Date.
"Remaining Available Excess Cash Flow Amount" shall
___________________________________________
mean, as at any date of determination (the "Determination Date")
__________________
in any Fiscal Year (the "Current Fiscal Year"), the sum of:
___________________
(a) 100% of Excess Cash Flow for each Fiscal Year
preceding the Current Fiscal Year commencing with Fiscal
Year 1995 minus
_____
(b) the aggregate amount of cash Investments made by
the Company in Unrestricted Subsidiaries as permitted by
Section 8.08(h)(ii)(B) hereof during the period commencing
on the Effective Date and ending on the Determination Date
minus
_____
(c) the amount by which (i) the aggregate amount of
cash payments made in respect of repurchases of common stock
of the Company as permitted by Section 8.09(b)(ii)(B) hereof
during the period commencing on the Effective Date and
ending on the Determination Date exceeds (ii) $150,000,000
_______
minus
_____
(d) the aggregate amount of Restricted Payments made in
cash as permitted by Section 8.09(c)(ii)(B) hereof during
the period commencing on the Effective Date and ending on
the Determination Date minus
_____
(e) the amount by which (i) the aggregate amount of
cash payments made (except to the extent such cash payments
are made with the proceeds of one or more Equity Issuances)
in respect of Acquisitions made as permitted by Sections
8.12(d) and 8.12(e) hereof during the period commencing on
the Effective Date and ending on the Determination Date
exceeds (ii) $250,000,000.
_______
"Release" shall mean any "release" as such term is
_______
defined in 42 U.S.C. 9601(22) or any successor statute.
"Reserve Requirement" shall mean, for any Interest
___________________
Period for any Eurodollar Loan or LIBOR Market 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 27 -
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 or LIBOR Market Loans.
"Restricted Payments" shall mean: (a) any declaration
___________________
or payment (whether made by the Company or any of its Subsidi-
aries) 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;
and (c) 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 Commitment" shall mean, as to each
___________________________
Bank, the obligation of such Bank to make Revolving Credit Loans
in an aggregate principal amount at any one time outstanding up
to but not exceeding (a) in the case of a 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 "Revolving Credit Commitments" and (b) in the case of any
other Bank, the aggregate amount of the Revolving Credit
Commitments of other 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 2.04 hereof or increased or reduced from time to time
pursuant to said Section 11.06(a)).
"Revolving Credit Commitment Reduction Date" shall mean
__________________________________________
each Quarterly Date on which a reduction in the aggregate amount
of the Revolving Credit Commitments becomes effective pursuant to
the second sentence of Section 2.04(c) hereof.
"Revolving Credit Commitment Termination Date" shall
____________________________________________
mean the Quarterly Date occurring in June 2003.
Credit Agreement
________________
</PAGE>
<PAGE>
- 28 -
"Revolving Credit Loans" shall have the meaning
______________________
assigned to such term in Section 2.01(c) hereof.
"Revolving Credit Notes" shall mean the promissory
______________________
notes of the Company provided for by Section 2.08(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.
"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 an Amended and
_______________________
Restated Loan Agreement substantially in the form of Exhibit B
hereto between SBC and the Administrative Agent, as modified and
supplemented and in effect from time to time.
"SBC Term Loan Notes" shall mean the promissory notes
___________________
of SBC issued pursuant to the SBC Term Loan Agreement.
"SBC Term Loans" shall mean loans to SBC outstanding
______________
under the SBC Term Loan Agreement.
"Security Agreement" shall mean a Second 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.
Credit Agreement
________________
</PAGE>
<PAGE>
- 29 -
"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
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).
"Senior 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.
"Senior Subordinated Notes" shall mean the Company's
_________________________
10-3/8% Senior Subordinated Notes due 2002 issued pursuant to the
Senior Subordinated Indenture, as the same shall be modified and
supplemented and in effect from time to time.
"Set Rate" shall have the meaning assigned to such term
________
in Section 2.03(c)(ii)(D) hereof.
"Set Rate Auction" shall mean a solicitation of Money
________________
Market Quotes setting forth Set Rates pursuant to Section 2.03
hereof.
"Set Rate Loans" shall mean Money Market Loans the
______________
interest rates on which are determined on the basis of Set Rates
pursuant to a Set Rate Auction.
"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
Credit Agreement
________________
</PAGE>
<PAGE>
- 30 -
Transferees (as such term is defined in 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).
"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.
"Stock Collateral" shall mean the "Stock Collateral"
________________
under and as defined in the Security Agreement.
"Subordinated Debt" shall mean, collectively, all
_________________
Indebtedness of the Company evidenced by the Senior Subordinated
Notes and Permitted Replacement Subordinated Debt and other
Indebtedness of the Company incurred as permitted by Section
8.07(b) or Section 8.07(d) hereof, if (a) such other Indebtedness
is subordinated to the obligations of the Company hereunder and
under the Guarantee Agreement as provided in clause (v) of
Section 8.07(c)(y) hereof, and (b) none of the Restricted
Subsidiaries of the Company is directly or indirectly liable
(contingently or otherwise) for any of such other Indebtedness,
(c) such other Indebtedness is not secured by any Property of the
Company or any of its Subsidiaries and (d) the incurrence of such
other Indebtedness and the incurrence of such other Indebtedness
as "Subordinated Debt" shall be permitted by the Senior
Subordinated Indenture, if then in effect, and/or such other
Subordinated Debt Documents as are then in effect.
"Subordinated Debt Documents" shall mean the Senior
___________________________
Subordinated Indenture, the Senior Subordinated Notes and any
Credit Agreement
________________
</PAGE>
<PAGE>
- 31 -
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.
"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 each of HBC, Infinity
___________________
of Boston, Infinity of California, SBC and each other Restricted
Subsidiary to which Subsidiary Acquisition Loans are made or
assigned.
"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, including, without limitation, the Subsidiary Term Loan
Agreements.
"Subsidiary Loan Notes" shall mean, collectively, the
_____________________
Subsidiary Term Loan Notes and other promissory notes of any
Subsidiary Borrower in respect of Subsidiary Acquisition Loans
made or assigned to such Subsidiary Borrower.
"Subsidiary Loans" shall mean, collectively, the
________________
Subsidiary Term Loans and the Subsidiary Acquisition Loans.
"Subsidiary Term Loan Agreements" shall mean,
_______________________________
collectively, the HBC Term Loan Agreement, the Infinity of Boston
Credit Agreement
________________
</PAGE>
<PAGE>
- 32 -
Term Loan Agreement, the Infinity of California Term Loan
Agreement and the SBC Term Loan Agreement.
"Subsidiary Term Loan Notes" shall mean, collectively,
__________________________
the HBC Term Loan Notes, the Infinity of Boston Term Loan Notes,
the Infinity of California Term Loan Notes and the SBC Term Loan
Notes.
"Subsidiary Term Loans" shall mean, collectively, the
_____________________
HBC Term Loans, the Infinity of Boston Term Loans, the Infinity
of California Term Loans and the SBC Term Loans.
"Syndicated Loans" shall mean, collectively, Term
________________
Loans, Acquisition Loans and Revolving Credit Loans.
"Syndicated Notes" shall mean Infinity Term Loan Notes,
________________
Infinity Acquisition Loan Notes, Revolving Credit Notes and
Subsidiary 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 Loans" shall mean, collectively, Infinity Term
__________
Loans and Subsidiary 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 (i) for any Fiscal
________
Year ending on or prior to the Acquisition Loan Commitment
Termination Date, "Total Debt Service" shall include payments
made during such Fiscal Year pursuant to Section 3.04 hereof of
principal of Acquisition Loans and Money Market Loans outstanding
under the Acquisition Loan Commitments only to the extent and in
the amount (determined without duplication) of any reduction of
the Acquisition Loan Commitments during such Fiscal Year pursuant
to Section 2.04(d) hereof and (ii) for any Fiscal Year ending on
Credit Agreement
________________
</PAGE>
<PAGE>
- 33 -
or prior to the Revolving Credit Commitment Termination Date,
"Total Debt Service" shall include payments made during such
Fiscal Year pursuant to Section 3.04 hereof of principal of
Revolving Credit Loans and Money Market Loans outstanding under
the Revolving Credit Commitments only to the extent and in the
amount (determined without duplication) of any reduction of the
Revolving Credit Commitments during such Fiscal Year pursuant to
Section 2.04(c) or Section 2.04(d) 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
Obligations) of the Company and its Restricted Subsidiaries,
determined on a consolidated basis, during such period, provided
that (i) 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 (ii) 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 to such 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 designated by the
Board of Directors of the Company as an "Unrestricted Subsidiary"
provided, in each case, that at the time any such other
Subsidiary is so organized or Acquired and at all times
thereafter:
Credit Agreement
________________
</PAGE>
<PAGE>
- 34 -
(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 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
(n) hereof with respect to the Company;
Credit Agreement
________________
</PAGE>
<PAGE>
- 35 -
(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 Senior Subordinated
Indenture; and
(vii) the Company has notified the Banks as to the
organization or Acquisition of such Subsidiary as required
by Section 8.21(a) hereof and the Company is in compliance
with its other obligations set forth in Section 8.21 hereof.
1.02 Accounting Terms and Determinations.
___________________________________
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all
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 Restricted 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.
Credit Agreement
________________
</PAGE>
<PAGE>
- 36 -
(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 Restricted 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
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.
1.03 Types and Classes of Loans and Commitments.
__________________________________________
Loans hereunder are distinguished by "Type" and "Class" and
Commitments hereunder are distinguished by "Class". The "Type"
of a Loan refers to whether such Loan is a Base Rate Loan, a
Eurodollar Loan, a Set Rate Loan or a LIBOR Market Loan, each of
which constitutes a Type. The "Class" of a Loan refers to
whether such Loan is an Infinity Term Loan, an Infinity
Acquisition Loan, a Revolving Credit Loan, a Subsidiary Term
Loan, a Subsidiary Acquisition Loan or a Money Market Loan, and
the "Class" of a Commitment refers to whether such Commitment is
an Acquisition Loan Commitment or a Revolving Credit Commitment,
each of which constitutes a Class.
Credit Agreement
________________
</PAGE>
<PAGE>
- 37 -
Section 2. Commitments.
___________
2.01 Syndicated Loans.
________________
(a) Conversion of Term Loans. As of the Effective
________________________
Date:
(i) all of the Infinity Term Loans under and as
defined in the Existing Credit Agreement outstanding
immediately prior to the Effective Date and $48,250,000 in
aggregate principal amount of the Infinity Acquisition 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");
___________________
(ii) all of the HBC Term Loans (as defined in the
Existing Credit Agreement) outstanding immediately prior to
the Effective Date under the Existing Subsidiary Loan
Agreement to which HBC is a party shall constitute "Loans"
under the HBC Term Loan Agreement (such Loans being herein
collectively called "HBC Term Loans");
______________
(iii) all of the Infinity of Boston Acquisition Loans
(as defined in the Existing Credit Agreement) outstanding
immediately prior to the Effective Date under the Existing
Subsidiary Loan Agreement to which Infinity of Boston is a
party shall constitute "Loans" under the Infinity of Boston
Term Loan Agreement (such Loans being herein collectively
called "Infinity of Boston Term Loans");
_____________________________
(iv) all of the Infinity of California Acquisition
Loans (as defined in the Existing Credit Agreement)
outstanding immediately prior to the Effective Date under
the Existing Subsidiary Loan Agreement to which Infinity of
California is a party and $31,000,000 in aggregate principal
amount of the Infinity 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 California Term Loan Agreement
(such Loans being herein collectively called "Infinity of
___________
California Term Loans"); and
_____________________
(v) all of the SBC Term Loans (as defined in the
Existing Credit Agreement) outstanding immediately prior to
the Effective Date under the Existing Subsidiary Loan
Agreement to which SBC is a party shall constitute "Loans"
under the SBC Term Loan Agreement (such Loans being herein
collectively called "SBC Term Loans").
______________
Credit Agreement
________________
</PAGE>
<PAGE>
- 38 -
Subject to the terms and conditions of this Agreement, the
Company may (as provided in Section 2.09 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) Acquisition Loans. Each Bank severally agrees, on
_________________
the terms and conditions of this Agreement, to make 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 Acquisition
Loan Commitment Termination Date in an aggregate principal amount
up to but not exceeding at any one time outstanding the unused
amount of such Bank's Acquisition Loan Commitment as then in
effect; provided that, prior to the Acquisition Loan Commitment
________
Termination Date, in no event shall the aggregate principal
amount of Acquisition Loans (as defined below), together with the
aggregate principal amount of all Money Market Loans made under
the Acquisition Loan Commitments, exceed the aggregate amount of
the Acquisition Loan Commitments as in effect from time to time.
Loans made to the Company pursuant to this Section 2.01(b) are
herein collectively called "Infinity Acquisition Loans". Loans
__________________________
made to any Restricted Subsidiary pursuant to this Section
2.01(b) 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 the period referred to in the first
sentence of this Section 2.01(b), (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 2.09 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.
(c) Revolving Credit Loans. As of the Effective Date,
______________________
Working Capital Loans under and as defined in the Existing Credit
Agreement and $19,750,000 in aggregate principal amount of the
Infinity Acquisition 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 39 -
constitute a utilization of each Bank's Revolving Credit
Commitment hereunder). Each Bank severally agrees, on the terms
and conditions of this Agreement, to make additional loans under
its Revolving Credit Commitment to the Company on any Business
Day during the period from and including the Effective Date to
and including the Revolving Credit Commitment Termination Date in
an aggregate principal amount up to but not exceeding at any one
time outstanding the unused amount of such Bank's Revolving
Credit Commitment as then in effect; provided that in no event
________
shall the aggregate principal amount of Revolving Credit Loans
(as defined below), together with the aggregate principal amount
of all Money Market Loans made under the Revolving Credit
Commitments, exceed the aggregate amount of the Revolving Credit
Commitments as in effect from time to time. Loans referred to in
the first sentence of this Section 2.01(c) and Loans made
pursuant to the second sentence of this Section 2.01(c) are
herein collectively called "Revolving Credit Loans". Subject to
______________________
the terms and conditions of this Agreement, during the period
referred to in the second sentence of this Section 2.01(c) the
Company may borrow, prepay and reborrow the amount of the
Revolving Credit Commitments by means of Base Rate Loans and
Eurodollar Loans and may (as provided in Section 2.09 hereof)
Convert Revolving Credit Loans of one Type into Revolving Credit
Loans of the other Type or Continue Revolving Credit Loans of one
Type as Revolving Credit Loans of the same Type.
(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 and each of the conditions
precedent specified in Section 6.03 hereof shall be
satisfied or waived with the consent of such of the
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 and (y) the Company
Credit Agreement
________________
</PAGE>
<PAGE>
- 40 -
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.
(e) Subsidiary Loan Agreements. The Subsidiary Loans
__________________________
made or assigned to any Subsidiary Borrower shall be governed by
a Subsidiary Loan Agreement between such Subsidiary Borrower and
the Administrative Agent.
2.02 Borrowings of Syndicated Loans. The Company
______________________________
shall give the Administrative Agent (which shall promptly notify
the Banks) notice of each borrowing by it of Syndicated Loans
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 of Syndicated Loans
hereunder or thereunder, each Bank shall make available the
amount of the Syndicated 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, 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.
2.03 Money Market Loans.
__________________
(a) In addition to borrowings of Syndicated Loans, at
any time prior to the Acquisition Loan Commitment Termination
Date or the Revolving Credit Commitment Termination Date, as the
case may be, the Company may, as set forth in this Section 2.03,
request the Banks to make offers to make Money Market Loans to
the Company in Dollars under the Acquisition Loan Commitments or
the Revolving Credit Commitments, respectively. The Banks may,
but shall have no obligation to, make such offers and the Company
may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section 2.03. Money Market Loans
may be LIBOR Market Loans or Set Rate Loans (each a "Type" of
Money Market Loan), provided that:
________
(i) the aggregate principal amount of all Money
Market Loans under the Acquisition Loan Commitments,
Credit Agreement
________________
</PAGE>
<PAGE>
- 41 -
together with the aggregate principal amount of all
Acquisition Loans, at any one time outstanding shall
not exceed the aggregate amount of the Acquisition Loan
Commitments at such time; and
(ii) the aggregate principal amount of all Money
Market Loans under the Revolving Credit Commitments
together with the aggregate principal amount of all
Revolving Credit Loans at any one time outstanding
shall not exceed the aggregate amount of the Revolving
Credit Commitments at such time.
(b) When the Company wishes to request offers to make
Money Market Loans, it shall give the Administrative Agent (which
shall promptly notify the Banks) notice (a "Money Market Quote
__________________
Request") so as to be received no later than 11:00 a.m. New York
_______
time on (x) the fourth Business Day prior to the date of
borrowing proposed therein, in the case of a LIBOR Auction or
(y) the Business Day immediately preceding the date of borrowing
proposed therein, in the case of a Set Rate Auction (or, in any
such case, such other time and date as the Company and the
Administrative Agent, with the consent of the Majority Banks, may
agree). Subject to Section 2.10 hereof, the Company may request
offers to make Money Market Loans for up to three different
Interest Periods in a single notice (for which purpose Interest
Periods described in different lettered clauses of the definition
of the term "Interest Period" shall be deemed to be different
Interest Periods even if they are coterminous); provided that the
________
request for each separate Interest Period shall be deemed to be a
separate Money Market Quote Request for a separate borrowing (a
"Money Market Borrowing"). Each such notice shall be
______________________
substantially in the form of Exhibit K-1 hereto and shall specify
as to each Money Market Borrowing:
(i) the Class of Commitments under which such
Money Market Borrowing is to be made;
(ii) the proposed date of such borrowing, which
shall be a Business Day;
(iii) the aggregate amount of such Money Market
Borrowing, which shall be at least $10,000,000 (or a
larger multiple of $1,000,000) but shall not cause the
limits specified in clause (i) or (ii) of Section
2.03(a) hereof to be violated;
(iv) the duration of the Interest Period
applicable thereto;
Credit Agreement
________________
</PAGE>
<PAGE>
- 42 -
(v) whether the Money Market Quotes requested for
a particular Interest Period are to be quotes for LIBOR
Market Loans or Set Rate Loans; and
(vi) if the Money Market Quotes requested are to
be quotes for Set Rate Loans, the date on which the
Money Market Quotes are to be submitted if it is before
the proposed date of borrowing (the date on which such
Money Market Quotes are to be submitted is called the
"Quotation Date").
______________
Except as otherwise provided in this Section 2.03(b), no Money
Market Quote Request shall be given within five Business Days (or
such other number of days as the Company and the Administrative
Agent, with the consent of the Majority Banks, may agree) of any
other Money Market Quote Request.
(c) (i) Each Bank may submit one or more Money Market
Quotes, each containing an offer to make a Money Market Loan in
response to any Money Market Quote Request; provided that, if the
________
Company's request under Section 2.03(b) hereof specified more
than one Interest Period, such Bank may make a single submission
containing one or more Money Market Quotes for each such Interest
Period. Each Money Market Quote must be submitted to the
Administrative Agent not later than (x) 2:00 p.m. New York time
on the fourth Business Day prior to the proposed date of
borrowing, in the case of a LIBOR Auction or (y) 10:00 a.m. New
York time on the Quotation Date, in the case of a Set Rate
Auction (or, in any such case, such other time and date as the
Company and the Administrative Agent, with the consent of the
Majority Banks, may agree); provided that any Money Market Quote
________
may be submitted by Chase (or its Applicable Lending Office) only
if Chase (or such Applicable Lending Office) notifies the Company
of the terms of the offer contained therein not later than (x)
1:00 p.m. New York time on the fourth Business Day prior to the
proposed date of borrowing, in the case of a LIBOR Auction or (y)
9:45 a.m. New York time on the Quotation Date, in the case of a
Set Rate Auction. Subject to Sections 5.02(b), 5.03, 6.03 and 9
hereof, any Money Market Quote so made shall be irrevocable
except with the consent of the Administrative Agent given on the
instructions of the Company.
(ii) Each Money Market Quote shall be substantially in
the form of Exhibit K-2 hereto and shall specify:
(A) the proposed date of borrowing and the Interest
Period therefor;
(B) the principal amount of the Money Market Loan for
which each such offer is being made, which principal amount
shall be at least $5,000,000 (or a larger multiple of
Credit Agreement
________________
</PAGE>
<PAGE>
- 43 -
$1,000,000); provided that the aggregate principal amount of
________
all Money Market Loans for which any Bank submits Money
Market Quotes (x) may be greater or less than the
Acquisition Loan Commitment or Revolving Credit Commitment
of such Bank but (y) may not exceed the principal amount of
the Money Market Borrowing for a particular Interest Period
for which offers were requested;
(C) in the case of a LIBOR Auction, the margin above
or below the applicable LIBO Rate (the "LIBO Margin")
___________
offered for each such Money Market Loan, expressed as a
percentage (rounded upwards, if necessary, to the nearest
1/10,000th of 1%) to be added to or subtracted from the
applicable LIBO Rate;
(D) in the case of a Set Rate Auction, the rate of
interest per annum (rounded upwards, if necessary, to the
nearest 1/10,000th of 1%) offered for each such Money Market
Loan (the "Set Rate"); and
________
(E) the identity of the quoting Bank.
Unless otherwise agreed by the Administrative Agent and the
Company, no Money Market Quote shall contain qualifying,
conditional or similar language or propose terms other than or in
addition to those set forth in the applicable Money Market Quote
Request and, in particular, no Money Market Quote may be
conditioned upon acceptance by the Company of all (or some
specified minimum) of the principal amount of the Money Market
Loan for which such Money Market Quote is being made, provided
________
that the submission by any Bank containing more than one Money
Market Quote may be conditioned on the Company not accepting
offers contained in such submission that would result in such
Bank making Money Market Loans pursuant thereto in excess of a
specified aggregate amount (the "Money Market Loan Limit").
_______________________
(d) The Administrative Agent shall (x) in the case of
a Set Rate Auction, as promptly as practicable after the Money
Market Quote is submitted (but in any event not later than 10:15
a.m. New York time on the Quotation Date) or (y) in the case of a
LIBOR Auction, by 4:00 p.m. New York time on the day a Money
Market Quote is submitted, notify the Company of the terms (i) of
any Money Market Quote submitted by any Bank that is in
accordance with Section 2.03(c) hereof and (ii) of any Money
Market Quote that amends, modifies or is otherwise inconsistent
with a previous Money Market Quote submitted by such Bank with
respect to the same Money Market Quote Request. Any such
subsequent Money Market Quote shall be disregarded by the
Administrative Agent unless such subsequent Money Market Quote is
submitted solely to correct a manifest error in such former Money
Market Quote. The Administrative Agent's notice to the Company
Credit Agreement
________________
</PAGE>
<PAGE>
- 44 -
shall specify (A) the aggregate principal amount of the Money
Market Borrowing for which offers have been received and (B) the
respective principal amounts and LIBO Margins or Set Rates, as
the case may be, so offered by each Bank (identifying the Bank
that made each Money Market Quote).
(e) Not later than 11:00 a.m. New York time on (x) the
third Business Day prior to the proposed date of borrowing, in
the case of a LIBOR Auction or (y) the Quotation Date, in the
case of a Set Rate Auction (or, in any such case, such other time
and date as the Company and the Administrative Agent, with the
consent of the Majority Banks, may agree), the Company shall
notify the Administrative Agent of its acceptance or
nonacceptance of the offers so notified to it pursuant to Section
2.03(d) hereof (which notice shall specify the aggregate
principal amount of offers from each Bank for each Interest
Period that are accepted, it being understood that the failure of
the Company to give such notice by such time shall constitute
nonacceptance) and the Administrative Agent shall promptly notify
each affected Bank. The notice from the Administrative Agent
shall also specify the aggregate principal amount of offers for
each Interest Period that were accepted and the lowest and
highest LIBO Margins and Set Rates that were accepted for each
Interest Period. The Company may accept any Money Market Quote
in whole or in part (provided that, subject to the penultimate
________
sentence of this Section 2.03(e), any Money Market Quote accepted
in part shall be at least $5,000,000 or a larger multiple of
$1,000,000); provided that:
________
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount set
forth in the related Money Market Quote Request;
(ii) the aggregate principal amount of each Money
Market Borrowing shall be at least $10,000,000 (or a larger
multiple of $1,000,000) but shall not cause the limits
specified in clause (i) or (ii) of Section 2.03(a) hereof to
be violated;
(iii) acceptance of offers may, subject to clause (v)
below, be made only in ascending order of LIBO Margins or
Set Rates, as the case may be, in each case beginning with
the lowest rate so offered;
(iv) the Company may not accept any offer where the
Administrative Agent has advised the Company that such offer
fails to comply with Section 2.03(c)(ii) hereof or otherwise
fails to comply with the requirements of this Agreement
(including, without limitation, Section 2.03(a) hereof); and
Credit Agreement
________________
</PAGE>
<PAGE>
- 45 -
(v) the aggregate principal amount of each Money
Market Borrowing from any Bank may not exceed any applicable
Money Market Loan Limit of such Bank.
If offers are made by two or more Banks with the same LIBO
Margins or Set Rates, as the case may be, for a greater aggregate
principal amount than the amount in respect of which offers are
accepted for the related Interest Period, the principal amount of
Money Market Loans in respect of which such offers are accepted
shall be allocated by the Company among such Banks as nearly as
possible (in amounts of at least $1,000,000 or larger multiples
of $1,000,000) in proportion to the aggregate principal amount of
such offers. Determinations by the Company of the amounts of
Money Market Loans shall be conclusive in the absence of manifest
error.
(f) Any Bank whose offer to make any Money Market Loan
has been accepted in accordance with the terms and conditions of
this Section 2.03 shall, not later than 1:00 p.m. New York time
on the date specified for the making of such Loan, make the
amount of such Loan available 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. The
amount so received by the Administrative Agent shall, subject to
the terms and conditions of this Agreement, be made available to
the Company on such date by depositing the same, in immediately
available funds, in an account of the Company maintained with
Chase at the Principal Office designated by the Company.
(g) Except for the purpose and to the extent expressly
stated in Section 2.04(a) hereof, the amount of any Money Market
Loan made by any Bank shall not constitute a utilization of such
Bank's Acquisition Loan Commitment or Revolving Credit
Commitment, as the case may be.
(h) The Company shall pay to the Administrative Agent
a fee of $3,000 each time the Company gives a Money Market Quote
Request to the Agent.
2.04 Changes of Commitments.
______________________
(a) Voluntary. The Company shall have the right at
_________
any time or from time to time (i) so long as no Acquisition Loans
or Money Market Loans made under the Acquisition Loan Commitments
are outstanding, to terminate the Acquisition Loan Commitments,
(ii) so long as no Revolving Credit Loans or Money Market Loans
made under the Revolving Credit Commitments are outstanding, to
terminate the Revolving Credit Commitments, (iii) to reduce the
aggregate unused amount of the Acquisition Loan Commitments (for
which purpose the aggregate principal amount of Money Market
Credit Agreement
________________
</PAGE>
<PAGE>
- 46 -
Loans made under the Acquisition Loan Commitments shall be deemed
to be use of the Acquisition Loan Commitments) and (iv) to reduce
the aggregate unused amount of the Revolving Credit Commitments
(for which purpose the aggregate principal amount of Money Market
Loans made under the Revolving Credit Commitments shall be deemed
to be use of the Revolving Credit Commitments); 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 of either Class of Commitments shall be in an aggregate
amount equal to $1,000,000 or a multiple of $1,000,000 in excess
thereof.
(b) Mandatory Reduction of Acquisition Loan
_______________________________________
Commitments. The aggregate amount of the Acquisition Loan
___________
Commitments shall be automatically reduced to zero at the close
of business on the Acquisition Loan Commitment Termination Date.
(c) Mandatory Reductions of Revolving Credit
________________________________________
Commitments. The aggregate amount of the Revolving Credit
___________
Commitments shall be automatically reduced to zero at the close
of business on the Revolving Credit Commitment Termination Date.
In addition, the aggregate amount of the Revolving Credit
Commitments shall be automatically reduced on each Revolving
Credit Commitment Reduction Date set forth below by an amount
equal to the product of (i) the aggregate amount of the Revolving
Credit Commitments that were in effect at the close of business
on the Effective Date times (ii) the percentage set forth below
opposite the related Revolving Credit Commitment Reduction Date:
Revolving Credit
Commitment Reduction Date
Occurring In: Percentage
____________ __________
September 1998 6.250%
December 1998 6.250%
March 1999 3.750%
June 1999 3.750%
September 1999 3.750%
December 1999 3.750%
March 2000 4.375%
June 2000 4.375%
September 2000 4.375%
December 2000 4.375%
March 2001 5.000%
June 2001 5.000%
September 2001 5.000%
December 2001 5.000%
March 2002 5.000%
June 2002 5.000%
September 2002 5.000%
December 2002 5.000%
Credit Agreement
________________
</PAGE>
<PAGE>
- 47 -
March 2003 7.500%
(d) Reduction of Acquisition Loan Commitments and
_____________________________________________
Revolving Credit Commitments.
____________________________
(i) Each Class of Commitments shall be automatically
reduced by the aggregate principal amount of each prepayment
of Loans of such Class made as required by Section 3.04(a),
3.04(b), 3.04(c) or 3.04(d) hereof.
(ii) Each Class of Commitments shall be automatically
reduced by the amount of any prepayment of Loans of the
related Class that would have been required to have been
made pursuant to Section 3.04(a), 3.04(b), 3.04(c) or
3.04(d) hereof but for the provisions of Section
3.04(g)(vi)(B) hereof.
(iii) If any event of the type described in Section
3.04(a), 3.04(b), 3.04(c) or 3.04(d) hereof occurs at any
time when no Syndicated Loans are outstanding and one or
both Classes of Commitments are then in effect, then on each
date on which a prepayment of Syndicated Loans would have
been required to have been made pursuant to any of said
Sections had any Syndicated Loans been outstanding on said
date the Commitments shall be automatically reduced by an
amount equal to the aggregate principal amount of the
Syndicated Loans that would have been required to have been
repaid had Syndicated Loans been outstanding on said date
(such reduction to be applied, if both Classes of
Commitments are then in effect, pro rata in accordance with
the respective aggregate amounts of such Classes of
Commitments).
(e) Effect of Commitment Reductions. Commitments once
_______________________________
terminated or reduced may not be reinstated.
2.05 Commitment Fees.
_______________
(a) The Company shall pay to the Administrative Agent
a commitment fee on the daily average unused 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, for the period from and including the day
immediately following the day through which accrued commitment
fees have 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%.
(b) The Company shall pay to the Administrative Agent
for account of each Bank a commitment fee on the daily average
Credit Agreement
________________
</PAGE>
<PAGE>
- 48 -
unused amount of each Class of Commitment of such Bank, for the
period from and including the Effective Date to but not including
the earlier of the date such Class of Commitment is terminated
and the Acquisition Loan Commitment Termination Date or the
Revolving Credit Commitment Termination Date (as the case may
be), at a rate per annum equal to 3/8 of 1%, except that for any
day on which either the Total Debt Ratio is less than 4.00 to 1,
or the Company's long-term unsecured debt securities are rated
BBB- or higher by Standard & Poor's Rating Group, a division of
McGraw Hill, Inc. (or any successor thereto) and Baa3 or higher
by Moody's Investor Services, Inc. (or any successor thereto),
commitment fees payable by the Company hereunder shall be
calculated at a rate per annum equal to 1/4 of 1%; provided that
________
no downward adjustment in the rate at which the commitment fee is
calculated by reason of a change in a rating for the Company's
long-term unsecured debt securities shall become effective until
the second Business Day after the Company notifies the
Administrative Agent of such change in such rating. Accrued
commitment fee in respect of either Class of Commitments shall be
payable on each Quarterly Date and on the earlier of the date the
Commitments of such Class are terminated and the Acquisition Loan
Commitment Termination Date or the Revolving Credit Commitment
Termination Date (as the case may be).
2.06 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.
2.07 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.
2.08 Notes.
_____
(a) The Infinity Term Loans held by each 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 49 -
the amount of such Bank's outstanding Infinity Term Loans as of
such date and otherwise duly completed.
(b) The Infinity Acquisition Loans held by each 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-2 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 Effective Date and otherwise duly completed.
(c) The Revolving Credit Loans made by each Bank shall
be evidenced by a single promissory note (each, a "Revolving
_________
Credit Note") of the Company in substantially the form of Exhibit
___________
A-3 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 Revolving Credit Commitment as in
effect on the Effective Date and otherwise duly completed.
(d) Loans to any Subsidiary Borrower held by any Bank,
and Loans to the Company held by any 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 Subsidiary Term 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 on such date and otherwise duly completed.
(e) The Money Market Loans made by any Bank under the
Acquisition Loan Commitments and the Revolving Credit Commitments
shall each be evidenced by a single promissory note of the
Company in substantially the form of Exhibit A-5 hereto, dated
the Effective Date, payable to the order of such Bank and
otherwise duly completed.
(f) The date, amount, Type, interest rate and duration
of Interest Period (if applicable) of each Loan of any Class 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 Bank's Loans of such
Class, 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 recordation or endorsement shall not
affect the obligations of the Company or the relevant Subsidiary
Credit Agreement
________________
</PAGE>
<PAGE>
- 50 -
Borrower, as the case may be, to make a payment when due of any
amount owing under such Note.
(g) 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 Notes pursuant to Section 11.06 hereof.
2.09 Conversions or Continuations of Syndicated 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 Syndicated Loans of one Type and Class into Syndicated
Loans of the other Type of the same Class or Continue Loans of
one Type and Class as Syndicated Loans of the same Type and
Class, 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.
2.10 Limitation on Interest Periods. All borrowings,
______________________________
Conversions and Continuations of Loans hereunder and under the
Subsidiary Loan Agreements and all selections of Interest Periods
(as defined herein and in each of 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 Fixed Rate Tranches exceed ten (for which
purpose Interest Periods described in different lettered clauses
of the definition of the term "Interest Period" in Section 1.01
hereof and in Section 1.01 of each of the Subsidiary Loan
Agreements shall be deemed to be different Interest Periods even
if they are coterminus). As used in this Section 2.10, the term
"Fixed Rate Tranche" is the collective reference to Eurodollar
__________________
Loans and Money Market 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 Loans were originally made on the same date (subject to the
last parenthetical phrase in the immediately preceding sentence).
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 borrow any
Syndicated Loan as a Eurodollar Loan, or to Convert any
Syndicated Loan into a Eurodollar Loan, or to Continue any
Syndicated Loan as a Eurodollar Loan, in which event all
Syndicated Loans shall be made, or, if outstanding as Eurodollar
Credit Agreement
________________
</PAGE>
<PAGE>
- 51 -
Loans, 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.
Section 3. Payments of Principal and Interest.
__________________________________
3.01 Repayment of Loans.
__________________
(a) The Company hereby promises to pay to the
Administrative Agent for account of each Bank the principal of
the Infinity Term Loans held by such Bank that are outstanding on
June 30, 1998 in 20 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 principal amount of the
Infinity Term Loans outstanding at the close of business on June
30, 1998 held by such Bank times (ii) the percentage set forth
_____
below opposite the related Principal Payment Date):
Principal Payment Date
Occurring In: Percentage
____________ __________
September 1998 6.250%
December 1998 6.250%
March 1999 3.750%
June 1999 3.750%
September 1999 3.750%
December 1999 3.750%
March 2000 4.375%
June 2000 4.375%
September 2000 4.375%
December 2000 4.375%
March 2001 5.000%
June 2001 5.000%
September 2001 5.000%
December 2001 5.000%
March 2002 5.000%
June 2002 5.000%
September 2002 5.000%
December 2002 5.000%
March 2003 7.500%
June 2003 7.500%
(b) The Company hereby promises to pay to the
Administrative Agent for account of each Bank the aggregate
principal amount of the Acquisition Loans held by such Bank that
are outstanding on the Acquisition Loan Commitment Termination
Date in 20 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 principal amount of the Acquisition
Loans outstanding at the close of business on the Acquisition
Credit Agreement
________________
</PAGE>
<PAGE>
- 52 -
Loan Commitment Termination Date held by such Bank times (ii) the
percentage set forth below opposite the related Principal Payment
Date):
Principal Payment Date
Occurring In: Percentage
_____________ __________
September 1998 6.250%
December 1998 6.250%
March 1999 3.750%
June 1999 3.750%
September 1999 3.750%
December 1999 3.750%
March 2000 4.375%
June 2000 4.375%
September 2000 4.375%
December 2000 4.375%
March 2001 5.000%
June 2001 5.000%
September 2001 5.000%
December 2001 5.000%
March 2002 5.000%
June 2002 5.000%
September 2002 5.000%
December 2002 5.000%
March 2003 7.500%
June 2003 7.500%
(c) The Company hereby promises to pay to the
Administrative Agent for account of each Bank the entire
outstanding principal amount of such Bank's Revolving Credit
Loans, and each Revolving Credit Loan shall mature, on the
Revolving Credit Commitment Termination Date.
(d) The Company hereby promises to pay to the
Administrative Agent for account of each Bank holding any Money
Market Loan the principal amount of such Money Market Loan, and
such Money Market Loan shall mature, on the last day of the
Interest Period for such Money Market Loan.
3.02 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:
Credit Agreement
________________
</PAGE>
<PAGE>
- 53 -
(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;
(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;
(iii) if such Loan is a LIBOR Market Loan, the LIBO Rate
for such Loan for the Interest Period therefor plus (or
____
minus) the LIBO Margin quoted by the Bank making such Loan
_____
in accordance with Section 2.03 hereof minus, for each day
_____
during the Interest Period for such Loan on which the Class
of Commitments under which such Loan was made remains in
effect, an amount equal to the amount of commitment fee
accruing for such day for account of such Bank under Section
2.05(b) hereof with respect to an amount equal to the lesser
of (x) the principal amount of such Loan and (y) the amount
of such Bank's Commitment under such Class of Commitments
for such day; and
(iv) if such Loan is a Set Rate Loan, the Set Rate for
such Loan for the Interest Period therefor quoted by the
Bank making such Loan in accordance with Section 2.03 hereof
minus, for each day during the Interest Period for such Loan
_____
on which the Class of Commitments under which such Loan was
made remains in effect, an amount equal to the amount of
commitment fee accruing for such day for account of such
Bank under Section 2.05(b) hereof with respect to an amount
equal to the lesser of (x) the principal amount of such Loan
and (y) the amount of such Bank's Commitment under such
Class of Commitments for such day.
(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 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.
(c) Accrued interest on each Loan 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 or a Money Market
Loan, on the last day of each Interest Period therefor and, if
Credit Agreement
________________
</PAGE>
<PAGE>
- 54 -
such Interest Period is longer than three months, at three-month
intervals following the first day of such Interest Period,
(iii) in the case of any Loan, upon the payment or prepayment
thereof (but only on the principal amount so paid or prepaid),
and (iv) in the case of a Syndicated Loan, upon the Conversion of
such Loan to a Syndicated Loan of the other Type (but only on the
principal amount so 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 interest rate
provided for herein or any change therein, the Administrative
Agent shall give notice thereof to the Banks 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
hereof 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.
3.03 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) Eurodollar Loans may be prepaid only on the last
day of an Interest Period for such Loans;
(b) Money Market Loans may not be prepaid;
(c) the Company shall give the Administrative Agent
notice of each such prepayment as provided in Section 4.05
hereof (and, on 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);
Credit Agreement
________________
</PAGE>
<PAGE>
- 55 -
(d) prior to the Acquisition Loan Commitment
Termination Date, each partial prepayment shall, at the
option of the Company, be applied to the prepayment of
Acquisition Loans and/or Revolving Credit Loans or, to the
extent not so applied, to the prepayment of the Infinity
Term Loans (the amount of the Infinity Term Loans to be so
prepaid to be applied to the installments thereof in the
inverse order of maturity), and then, after all Infinity
Term Loans have been paid in full, to the prepayment of
Subsidiary Term Loans pro rata in accordance with the
respective aggregate principal amounts of such Loans then
outstanding (the amount of the Loans to each Subsidiary
Borrower so prepaid to be applied to the remaining
installments of such Loans in the inverse order of
maturity); and
(e) on and after the Acquisition Loan Commitment
Termination Date, each partial prepayment shall, at the
option of the Company, be applied to the prepayment of
Revolving Credit Loans or, to the extent not so applied, to
the prepayment of Infinity Term Loans and Infinity
Acquisition Loans pro rata in accordance with the respective
aggregate principal amounts of the Loans of such Classes
(the amount of the Loans of each such Class to be 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 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 such Loans then outstanding (the amount of the Loans to
each Subsidiary Borrower 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 (d) or (e) above to be applied to the
installments of Loans of any Class in the inverse order of
maturity shall instead be applied to the installments of the
Loans of such Class in the direct order of their maturity, except
that no such installment scheduled to be paid pursuant to Section
3.01 hereof following the date that is 270 days after the date of
such prepayment may be prepaid as provided in this clause (ii),
and (iii) all prepayments of Term Loans made prior to September
30, 1998 pursuant to this Section 3.03 shall, solely for purposes
of determining compliance with clause (ii) of this Section 3.03,
be deemed to have been made on September 30, 1998.
Credit Agreement
________________
</PAGE>
<PAGE>
- 56 -
3.04 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.
(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, 1999, the principal of
Loans shall be prepaid (as specified in paragraph (g) below)
in an aggregate amount equal to 75% of Excess Cash Flow for
the immediately preceding Fiscal Year (or, in the case of
the prepayment to be made under this Section 3.04(c) in
Credit Agreement
________________
</PAGE>
<PAGE>
- 57 -
1999, 37.5% of Excess Cash Flow for the immediately
preceding Fiscal Year).
(d) Permitted Additional Debt. Upon the receipt by
_________________________
the Company of the proceeds of Indebtedness of the Company
incurred as permitted by Section 8.07(b) hereof, the
principal of the Loans shall be prepaid (as specified in
paragraph (g) below) in an amount equal to 100% of the net
cash proceeds of such Indebtedness. For purposes of this
Section 3.04(d), "net cash proceeds" shall mean all cash
amounts received by the Company in respect of such
Indebtedness net of expenses incurred in connection
therewith.
(e) Reductions of Acquisition Loan Commitments. Upon
__________________________________________
each reduction in the aggregate amount of the Acquisition
Loan Commitments pursuant to Section 2.04(a) hereof to an
aggregate amount less than the then aggregate outstanding
principal amount of the Acquisition Loans and Money Market
Loans then outstanding under the Acquisition Loan
Commitments, Acquisition Loans shall be prepaid in the
amounts required so that, after giving effect thereto, the
aggregate outstanding principal amount of Acquisition Loans
and Money Market Loans then outstanding under the
Acquisition Loan Commitments is less than or equal to the
amount of Acquisition Loan Commitments as so reduced.
(f) Reductions of Revolving Credit Loan Commitments.
_______________________________________________
Upon each reduction in the aggregate amount of the Revolving
Credit Commitments pursuant to Section 2.04(a) hereof to an
aggregate amount less than the then aggregate outstanding
principal amount of the Revolving Credit Loans and Money
Market Loans then outstanding under the Revolving Credit
Commitments, Revolving Credit Loans shall be prepaid in the
amounts required so that, after giving effect thereto, the
aggregate outstanding principal amount of Revolving Credit
Loans and Money Market Loans then outstanding under the
Revolving Credit Commitments is less than or equal to the
amount of the Revolving Credit Commitments as so reduced.
(g) Application and Timing of Payments.
__________________________________
(i) Each prepayment under paragraph (a) of this
Section 3.04 shall be applied:
first, to the prepayment of Infinity Loans
_____
pro rata in accordance with the aggregate
principal amounts of such Loans of each Class then
outstanding (the amount to be applied to the
prepayment of Infinity Term Loans and, after the
Acquisition Loan Commitment Termination Date,
Credit Agreement
________________
</PAGE>
<PAGE>
- 58 -
Infinity Acquisition Loans to be applied to the
remaining installments of such Loans ratably), and
then, after all Infinity Loans have been paid in
full;
second, to the prepayment of Subsidiary Loans
______
pro rata in accordance with the aggregate
principal amounts of such Loans then outstanding
(the amount of the Subsidiary Term Loans and,
after the Acquisition Loan Commitment Termination
Date, Subsidiary Acquisition Loans to each
Subsidiary Borrower so prepaid to be applied to
the remaining installments of such Loans ratably).
(ii) Each prepayment under paragraph (b) or (c) of
this Section 3.04 shall be applied:
first, to the prepayment of Infinity Loans
_____
pro rata in accordance with the aggregate
principal amounts of such Loans of each Class then
outstanding (the amount to be applied to the
prepayment of Infinity Term Loans and, after the
Acquisition Loan Commitment Termination Date,
Infinity Acquisition Loans to be applied to the
remaining installments of such Loans in the
inverse order of maturity), and then, after all
Infinity Loans have been paid in full;
second, to the prepayment of Subsidiary Loans
______
pro rata in accordance with the aggregate
principal amounts of such Loans then outstanding
(the amount of the Subsidiary Term Loans and,
after the Acquisition Loan Commitment Termination
Date, Subsidiary Acquisition Loans to each
Subsidiary Borrower so prepaid to be applied to
the remaining installments of such Loans in the
inverse order of maturity).
(iii) One-half of the amount of each prepayment under
paragraph (d) of this Section 3.04 shall be applied as
specified in clause (i) above and the balance of each such
prepayment shall be applied as specified in clause (ii)
above;
(iv) Each prepayment under paragraph (e) of this
Section 3.04 shall be applied:
first, to the prepayment of Infinity Acquisition
_____
Loans, and then, after all Infinity Acquisition Loans
have been paid in full;
Credit Agreement
________________
</PAGE>
<PAGE>
- 59 -
second, to the prepayment of Subsidiary
______
Acquisition Loans pro rata in accordance with the
respective aggregate principal amounts of such Loans
then outstanding.
(v) Each prepayment under paragraph (f) of this
Section 3.04 shall be applied to the prepayment of Revolving
Credit Loans.
(vi) Notwithstanding anything in this Section 3.04 to
the contrary: (A) no prepayment of Loans pursuant to either
paragraph (a) or (b) above shall be required to 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 such paragraphs (a) and (b)
equals or exceeds $1,000,000, after which date all such
amounts received during such Fiscal Year shall be applied to
such prepayment as therein provided; (B) no prepayment of
Acquisition Loans or Revolving Credit Loans pursuant to any
of paragraphs (a), (b), (c) and (d) above shall be required
to be made except to the extent, that on the date such
prepayment is required to be made the amount otherwise
required to be prepaid exceeds the aggregate unused amount
of the Acquisition Loan Commitments or the Revolving Credit
Commitments, as the case may be, in effect on such date; and
(C) subject to the amendment of the Security Agreement
referred to below having become effective, if the Company so
elects by notice to the Administrative Agent no later than
15 Business Days prior to any Prepayment Date (as defined
below), no prepayment of Eurodollar Loans pursuant to any of
paragraphs (a), (b), (c) and (d) above shall be required to
be made except on the last day(s) of the respective Interest
Period(s) therefor in effect at the time such prepayments
would otherwise be required to be made, provided, that if on
________
any date (each, a "Prepayment Date") that a prepayment of
_______________
Eurodollar Loans would be required to be made pursuant to
any of such paragraphs but for the provisions of this clause
(C), then on such Prepayment Date, the Company shall deliver
to the Collateral Agent for deposit into a cash collateral
account in the name and under the control of the Collateral
Agent cash in an amount equal to the amount of such
prepayment as to which payment has been deferred pursuant to
this clause (C), provided, further, that the Security
________ _______
Agreement shall have been amended pursuant to documentation
in form and substance satisfactory to the Majority Banks to
provide for the creation, and investment of amounts on
deposit in, such cash collateral account and also to
provide, on the last day(s) of the respective Interest
Period(s) for such Eurodollar Loans, for the application of
such monies to the prepayment of such Eurodollar Loans.
Credit Agreement
________________
</PAGE>
<PAGE>
- 60 -
(vii) The Company shall give notice to the
Administrative Agent of each prepayment pursuant to this
Section 3.04 in the same manner and at the same time as is
required for any optional prepayment pursuant to Section
3.03 hereof.
Section 4. Payments; Pro Rata Treatment; Computations;
___________________________________________
Etc.
____
4.01 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.
Credit Agreement
________________
</PAGE>
<PAGE>
- 61 -
(e) All payments by the Company hereunder or by any
Subsidiary Borrower under the Subsidiary Loan Agreement to which
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.
4.02 Pro Rata Treatment. Except to the extent
__________________
otherwise provided herein:
(a) each borrowing (including, without limitation, by
any Subsidiary Borrower) under each Class of Commitments
shall be made from the Banks, each payment of commitment
fees and facility fees in respect of each Class of
Commitments shall be made for account of the Banks, and each
termination or reduction of the amount of each Class of
Commitments shall be applied to such Class, pro rata
according to the respective unused amounts of the
Commitments of such Class;
(b) the Conversion and Continuation of Loans hereunder
or under any Subsidiary Loan Agreement of a particular Type
and Class (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 according
to the respective amounts of their Loans of such Class, and
Eurodollar Loans of a particular Type and Class 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 Class;
(c) each payment or prepayment of principal of Loans
hereunder or under any Subsidiary Loan Agreement of a
particular Type and Class shall be made to the
Administrative Agent for account of the Banks pro rata in
accordance with the respective unpaid principal amounts of
the Loans of such Type and Class;
(d) each payment of interest on Loans hereunder or
under any Subsidiary Loan Agreement of a particular Type and
Class shall be made to the Administrative Agent for account
of the Banks in accordance with the amounts of interest on
Loans of such Type and Class then due and payable;
(e) the conversion of a portion of the Infinity
Acquisition Loans and Working Capital Loans, in each case,
Credit Agreement
________________
</PAGE>
<PAGE>
- 62 -
under and as defined in the Existing Credit Agreement to
Infinity Term Loans and Revolving Credit Loans hereunder,
respectively, on the Effective Date as provided in Sections
2.01(a) and 2.01(c) hereof shall be made in a manner such
that after giving effect to such conversion each Bank holds
Infinity Term Loans and Revolving Credit Loans hereunder 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; and
(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 Acquisition
Loan 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.
4.03 Computations. Interest on Eurodollar Loans and
Money Market 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.
4.04 Minimum Amounts. Except for mandatory prepay-
ments 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, (a) each borrowing, Conversion
and prepayment of principal of Base Rate Loans shall be in an
amount equal to $500,000 or a multiple of $100,000 in excess
thereof; (b) each borrowing and Conversion of Eurodollar Loans
shall be in an amount equal to $3,000,000 or a multiple of
$1,000,000 in excess thereof; and (c) each prepayment of
Eurodollar Loans shall be in an amount at least equal to
$1,000,000 or a multiple of $1,000,000 in excess thereof
(borrowings of Loans of different Types or Classes, 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 Classes 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 63 -
purposes of the foregoing, one for each Type, Class or Interest
Period).
4.05 Certain Notices. Except as otherwise provided in
_______________
Section 2.03 hereof with respect to Money Market Loans, 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 Classes 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, 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 64 -
Each such notice of termination or reduction shall specify the
amount and the Class of the Commitments to be terminated or
reduced. Each such notice of borrowing, Conversion, Continuation
or optional or mandatory prepayment shall specify the Class 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
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.
4.06 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 65 -
Applicable Margin for Base Rate Loans 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.
Section 5. Yield Protection, Etc.
______________________
5.01 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
Fixed Rate Loans or its obligation to make any Fixed Rate 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 or LIBO
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 right and
obligation of such Bank to make or Continue Fixed Rate Loans, or
to Convert Base Rate Loans into Eurodollar Loans, until the
Regulatory Change giving rise to such request ceases to be in
Credit Agreement
________________
</PAGE>
<PAGE>
- 66 -
effect (in which case the provisions of Section 5.04 hereof shall
be applicable).
(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 any Type of Fixed Rate Loans is determined or a
category of extensions of credit or other assets of such Bank
which includes any Type of Fixed Rate 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 Adminis-
trative Agent), the right and obligation of such Bank to make
Fixed Rate Loans and to 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
____________
Credit Agreement
________________
</PAGE>
<PAGE>
- 67 -
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
such 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 deter-
________
minations 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 for (i) any increase in
costs resulting from such Bank failing to comply with any of the
requirements set forth in Section 5.06(a) hereof or (ii) any
costs of such Bank that have been taken into account in the
determination of the applicable interest rate.
5.02 Limitation on Eurodollar Loans. Anything herein
______________________________
to the contrary notwithstanding, if, on or prior to the deter-
mination of any Eurodollar Base Rate for any Fixed Rate Loan(s)
for any Interest Period therefor:
(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
Credit Agreement
________________
</PAGE>
<PAGE>
- 68 -
relevant maturities for purposes of determining rates of
interest for such Loans; or
(b) the Majority Banks determine (or any Bank that has
outstanding a Money Market Quote with respect to a LIBOR
Market Loan determines), 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 such Type of Fixed Rate
Loans for such Interest Period is to be determined are not
likely adequately to cover the cost to such Bank(s) of
making or maintaining such Type of 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 such Loans or any
other Loans of such Type, to Continue Eurodollar Loans or to
Convert Base Rate Loans into Eurodollar Loans and if any
Eurodollar Loans are then outstanding, the Company shall, on the
last day(s) of the then current Interest Period(s) for such
Loans, Convert such Loans into Base Rate Loans in accordance with
Section 2.09 hereof.
5.03 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 or
LIBOR Market 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 (in the case of Eurodollar
Loans) Continue, or to Convert Syndicated Loans of the 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), and
such Bank shall no longer be obligated to make any LIBOR Market
Loan that it has offered to make hereunder.
5.04 Treatment of Affected Loans. If the obligation
___________________________
of any Bank to make Eurodollar Loans or to 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
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 69 -
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 Class have been so Converted, all payments and
prepayments of principal which would otherwise be applied to
such Bank's Eurodollar Loans of such Class shall be applied
instead to its Base Rate Loans of such Class; 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 Class 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 Class held by other Banks are
outstanding, such Bank's Base Rate Loans of such Class 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 Class 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 Class.
5.05 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 or prepayment of a Fixed Rate Loan or
a Set Rate Loan, or any Conversion of a Eurodollar Loan held
by such Bank for any reason (including, without limitation,
the prepayment of such Loan pursuant to Section 3.04 hereof
or 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 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 70 -
(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 Fixed Rate
Loan or a Set Rate Loan (with respect to which, in the case
of a Money Market Loan, the Company has accepted the related
Money Market Quote) from such Bank on the date for such
borrowing specified in the relevant notice of borrowing
given pursuant to Section 2.02 or 2.03(b) 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.
5.06 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
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 71 -
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
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 72 -
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
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 73 -
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.
5.07 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
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 74 -
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.
____________________
6.01 Effective Date and Conversion of Existing Loans.
_______________________________________________
The effectiveness of this Agreement, the conversion (pursuant to
Sections 2.01(a) and 2.01(c) hereof) of Existing Loans to Loans
hereunder and under the Subsidiary Term Loan Agreements and the
obligation of any Bank to make its initial Acquisition Loan or
Revolving Credit Loan (as the case may be) on and after the
Effective Date are subject to (i) the condition precedent that
the Effective Date shall occur on or before December 31, 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:
(a) Corporate Documents. A certificate from the
___________________
Secretary of State of the state in which each Obligor is
organized or has its principal place of business dated as of
a recent date as to the good standing (or its equivalent) of
and, with respect to such Obligor's state of organization,
listing the charter documents filed by such Obligor and
copies, certified by a Secretary or an Assistant Secretary
of such Obligor, of the charter and by-laws (or equivalent
documents) of such 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 certificate 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 6.03(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,
Credit Agreement
________________
</PAGE>
<PAGE>
- 75 -
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 Notes, duly completed, executed and
_____
delivered. Each of the Banks agrees that it will return to
the Company the Notes (as defined in the Existing Credit
Agreement) held by it under the Existing Credit Agreement
and the Existing Subsidiary Loan Agreements on or as
promptly as practical after the Effective Date.
(f) Certain Subsidiary Loan Agreements. The
__________________________________
Subsidiary Term Loan Agreements, each duly completed,
executed and delivered by the Subsidiary Borrower party
thereto and the Administrative Agent; and an Assignment
Agreement, duly completed, executed and delivered by the
Company and Infinity of California pursuant to which the
Company will assign, on the Effective Date, $31,000,000 in
aggregate principal amount of the Infinity Acquisition Loans
under and as defined in the Existing Credit Agreement to
Infinity of California. In addition, the Administrative
Agent shall have received evidence satisfactory to it that
each of the conditions precedent specified in Section 6 of
each of the Subsidiary Term Loan Agreements 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 76 -
the security interests created pursuant to 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.
(j) Fees and Expenses. Evidence that all fees payable
_________________
by the Company to Chase or any of the Agents on or prior to
the Effective Date in connection with the credit facilities
provided for by this Agreement, and all amounts payable by
the Company, HBC, Infinity of Boston, Infinity of California
and SBC under Section 11.03 of this Agreement and Section
10.03 of each of the Subsidiary Term Loan Agreements on or
prior to the Effective Date, have been paid in full (in the
case of amounts payable under said Sections 11.03 and 10.03,
to the extent that invoices therefor have been delivered to
the Company).
(k) Existing Unrestricted Subsidiaries. A certificate
__________________________________
of a Senior Officer of the Company dated the Effective Date
to the effect that (i) the Company has no Unrestricted
Subsidiaries other than Infinity Network Inc. and UCGI,
Inc., (ii) on the Effective Date the Company will be in
compliance with its obligations under Section 8.21 hereof
and (iii) the representations, warranties and certifications
made in the certificate of a Senior Officer under and as
defined in the Existing Credit Agreement delivered pursuant
to Section 6.01(k) of the Existing Credit Agreement on the
Effective Date under and as defined in the Existing Credit
Agreement are true in all material respects on and as of the
Effective Date with the same force and effect as if made on
and as of the Effective Date (or, if any such
representation, warranty or certification is expressly
stated to have been made as of a specific date, as of such
specific date).
(l) Assignments of Existing Loans. An assignment and
_____________________________
assumption agreement, duly completed, executed and delivered
by and between all Banks (as defined in the Existing Credit
Agreement) holding Existing Loans and all Banks hereunder
pursuant to which, on the Effective Date, all such Banks
will assign Existing Loans among themselves and make such
other adjustments so that, after giving effect to such
assignments and adjustments and the occurrence of the
Effective Date, the Banks hereunder will hold Commitments,
Loans hereunder and Loans under the Subsidiary Term Loan
Credit Agreement
________________
</PAGE>
<PAGE>
- 77 -
Agreements pro rata as contemplated by Section 4.02 hereof,
and evidence that such assignments and adjustments will be
made effective on the Effective Date.
(m) 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.
6.02 Acquisition Loans. The obligations of the Banks
_________________
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, (ii) if such
Acquisition Loans are being made to a Restricted Subsidiary, (x)
the related Subsidiary Loan Agreement, duly completed, executed
and delivered by such Restricted Subsidiary and the
Administrative Agent and (y) 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.
6.03 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 78 -
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:
7.01 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.
7.02 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 September 30, 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 nine-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 nine-month period ended
on said dates (subject, in the case of such financial statements
as at September 30, 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 79 -
provided for in said balance sheets or the notes thereto as at
said dates. Since September 30, 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.
7.03 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.
7.04 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.
7.05 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 80 -
or similar laws of general applicability affecting the
enforcement of creditors' rights and (b) the application of
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
7.06 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 Section 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, could not reasonably
be expected to 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.
7.07 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.
7.08 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).
7.09 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, 1990. The Company
Credit Agreement
________________
</PAGE>
<PAGE>
- 81 -
and its Subsidiaries have filed all United States Federal income
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,
requirements, obligations, schedules and timetables contained in
any applicable Environmental Law or in any regulation, code,
plan, order, decree, judgment, injunction, notice or demand
Credit Agreement
________________
</PAGE>
<PAGE>
- 82 -
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. 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, all outstanding shares of each of such
Subsidiaries are owned, free and clear of all Liens, by the
Company or another such Subsidiary, and all such shares are
validly issued, fully paid and non-assessable and the Company (or
such a Subsidiary) also owns, free and clear of Liens, all such
Investments.
7.15 Capitalization. The authorized and outstanding
______________
capital stock of the Company is correctly described in the
Company's Annual Report on Form 10-K filed with the Securities
and Exchange Commission with respect to Fiscal Year 1993 and the
Company's Quarterly Reports on Form 10-Q filed with the
Securities and Exchange Commission with respect to the first
three fiscal quarters of Fiscal Year 1994. All outstanding
shares of capital stock of the Company are validly issued, fully
paid and nonassessable. The significant shareholders of the
Company and the amount of capital stock of the Company then held
by such shareholders are correctly described in the Company's
proxy statement dated May 2, 1994 filed with the Securities and
Exchange Commission.
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 83 -
clear of all Liens (except Liens permitted under Section 8.06
hereof).
7.17 Defaults. 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.
(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,
Credit Agreement
________________
</PAGE>
<PAGE>
- 84 -
constitute "Senior Indebtedness" and "Significant Senior
Indebtedness" under and as defined in the Senior 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:
8.01 Financial Statements. The Company will deliver
____________________
to the Administrative Agent (with sufficient copies for each of
the Banks):
(a) as soon as available and in any event within 60
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
beginning of such 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 120
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 85 -
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 60
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 such 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 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 120
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;
Credit Agreement
________________
</PAGE>
<PAGE>
- 86 -
(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
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 87 -
or any ERISA Affiliate to enforce Section 515 of ERISA,
which proceeding is not dismissed within 30 days;
(h) 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;
(i) 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;
(j) 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
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;
(k) 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;
(l) at the time the Company furnishes each set of
financial statements pursuant to clause (c) or (d) above,
summaries of the operating revenues, operating expenses and
broadcast cash flow for each Station owned by each
Restricted Subsidiary;
Credit Agreement
________________
</PAGE>
<PAGE>
- 88 -
(m) 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
(n) 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 the Administrative Agent (with
sufficient copies for 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, 8.07, 8.08,
8.09, 8.10, 8.11, 8.12(d) and 8.12(e) hereof and specifying the
aggregate amount of Indebtedness of the Company and its
Restricted Subsidiaries secured by Permitted Liens of the type
referred to in clause (h) of the definition of Permitted Liens
contained in Section 1.01 hereof. In addition, the Company will
furnish to the Administrative Agent (with sufficient copies for
each Bank), at the time it furnishes the financial statements
pursuant to paragraph (c) above for the fiscal quarter of the
Company ended on June 30, 1998, a certificate of a senior
financial officer of the Company (which certificate shall contain
computations in such detail as shall be satisfactory to the
Administrative Agent with respect to the allocations set forth
therein) calculating, as of the Acquisition Loan Commitment
Termination Date, each of the Remaining Available Equity Issuance
Amount and the Remaining Available Excess Cash Flow Amount. The
Remaining Available Equity Issuance Amount as so calculated as of
the Acquisition Loan Commitment Termination Date and as set forth
in such certificate is herein referred to as the "June 1998
_________
Remaining Available Equity Issuance Amount". Once determined,
__________________________________________
the June 1998 Remaining Available Equity Issuance Amount may not
be changed.
8.02 Litigation. The Company will promptly give
__________
notice to the Administrative Agent (with sufficient copies for
Credit Agreement
________________
</PAGE>
<PAGE>
- 89 -
each Bank) 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, could not
reasonably be expected to have a Material Adverse Effect.
8.03 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 govern-
mental or regulatory authorities (including, without limitation,
the FCC) if failure to comply with such requirements could
reasonably be expected to 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 pro-
ceedings 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).
8.04 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.
8.05 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
amount of all Capital Expenditures of the Company and its
Restricted Subsidiaries made during such Fiscal Year does not
exceed $5,000,000; 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 90 -
$5,000,000, the excess of (a) $5,000,000 over (b) the actual
amount of Capital Expenditures made in such Fiscal Year may be
expended in the next succeeding Fiscal Year only.
8.06 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.
8.07 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 and the
other Basic Documents;
(b) Indebtedness of the Company ("Permitted Additional
____________________
Debt") incurred solely to repay or prepay (and the net
____
proceeds of which are applied, upon issuance, to repay or
prepay pursuant to Section 3.04(d) hereof) the Loans,
provided that (i) the aggregate principal amount of such
________
Indebtedness does not exceed $200,000,000, (ii) no part of
such Indebtedness matures or is required to be paid,
prepaid, redeemed, purchased or otherwise acquired by the
Company or any of its Restricted Subsidiaries (other than by
reason of acceleration upon or following the occurrence of
an event of default) prior to 2004, (iii) none of the
Restricted Subsidiaries of the Company is directly or
indirectly liable (contingently or otherwise) for any of
such Indebtedness, (iv) none of such Indebtedness is secured
by any Property of the Company or any of its Restricted
Subsidiaries, (v) such Indebtedness is governed by
agreements and instruments containing terms and conditions
(including, without limitation, interest, amortization,
covenants and events of default) in form and substance
satisfactory to the Majority Banks (such agreements and
instruments to be furnished to the Banks no later than 30
days prior to the incurrence of such Indebtedness), (vi)
Credit Agreement
________________
</PAGE>
<PAGE>
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immediately prior to the incurrence of such Indebtedness and
after giving effect thereto, no Default has occurred and is
continuing and (vii) the Administrative Agent has received a
certificate of a Senior Officer of the Company setting forth
in reasonable detail the computations necessary to determine
that the Company is, and will be, in compliance with the
terms of this Agreement both immediately prior, and after
giving effect, to the incurrence of such Indebtedness;
(c) (x) the Senior Subordinated Notes and (y) other
Indebtedness of the Company ("Permitted Replacement
_____________________
Subordinated Debt") incurred solely to repay, prepay,
_________________
redeem, retire, purchase or otherwise acquire (but not to
defease) (and the net proceeds of which are applied, upon
issuance, to repay, prepay, redeem, retire, purchase or
otherwise acquire (but not to defease)) Senior Subordinated
Notes, provided that (i) the aggregate principal amount of
________
such other Indebtedness does not exceed the aggregate
principal amount of the Senior Subordinated Notes so repaid,
prepaid, redeemed, retired, purchased or otherwise acquired,
(ii) no part of such other Indebtedness matures or is
required to be paid, prepaid, redeemed, purchased or
otherwise acquired by the Company or any of its Restricted
Subsidiaries (other than by reason of acceleration upon or
following the occurrence of an event of default) prior to
2004, (iii) none of the Restricted Subsidiaries of the
Company is directly or indirectly liable (contingently or
otherwise) for any of such other Indebtedness, (iv) none of
such other Indebtedness is secured by any Property of the
Company or any of its Restricted Subsidiaries, (v) such
other Indebtedness is subordinated to the obligations of the
Company hereunder and under the Guarantee Agreement on terms
satisfactory to the Majority Banks and is governed by
agreements and instruments containing other terms
(including, without limitation, interest, amortization,
covenants and events of default) in form and substance
satisfactory to the Majority Banks (such agreements and
instruments to be furnished to the Banks no later than 30
days prior to the incurrence of such Indebtedness), provided
________
that, if such other Indebtedness is incurred pursuant to and
governed by agreements and instruments each of the terms and
conditions of which is as favorable to the Company as the
terms and conditions of the Senior Subordinated Notes and
the Senior Subordinated Indenture, such agreements and
instruments shall be deemed to be satisfactory to the
Majority Banks, (vi) immediately prior to the incurrence of
any of such other Indebtedness and after giving effect
thereto, no Default shall have occurred and be continuing
and the Administrative Agent shall have received a
certificate of a Senior Officer of the Company setting forth
in reasonable detail the computations necessary to determine
Credit Agreement
________________
</PAGE>
<PAGE>
- 92 -
that the Company is, and will be, in compliance with the
terms of this Agreement both immediately prior, and after
giving effect, to the incurrence of such other Indebtedness;
and
(d) other Indebtedness not exceeding an aggregate
principal amount of $35,000,000 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
$10,000,000, (ii) the aggregate principal amount of such
other Indebtedness that is secured shall not exceed
$10,000,000 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
Property in respect of any such other Indebtedness of any
other Person.
8.08 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 issued by, and other
bank accounts with, any Bank or any other bank having
capital and surplus of at least $500,000,000 (provided that
________
each such time deposit or bankers' acceptance shall mature
within one year after the date acquired by the Company or
any Restricted Subsidiary);
(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 Rating Group, a division of
McGraw Hill, Inc. (or any successor thereto) or P-2 or
better by Moody's Investor Services, Inc. (or any successor
thereto);
Credit Agreement
________________
</PAGE>
<PAGE>
- 93 -
(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;
(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 cash Investment
shall be made on any date if, after giving effect thereto,
(A) the Remaining Available Equity Issuance Amount is less
than zero and (B) either (I) the Remaining Available Excess
Cash Flow Amount is less than zero or (II) the aggregate
amount of cash Investments made by the Company in
Unrestricted Subsidiaries as permitted by this Section
8.08(h)(ii)(B) on and after the Effective Date is greater
than $50,000,000 and (x) no such cash Investment shall be
made as permitted by this Section 8.08(h)(ii)(B) if, after
giving effect thereto, the aggregate amount of cash
Investments made by Unrestricted Subsidiaries in Westwood
One, Inc. with the proceeds of cash Investments made by the
Company in such Unrestricted Subsidiaries on and after the
Effective Date pursuant to this Section 8.08(h)(ii)(B) is
greater than 50% of the aggregate amount of all cash
Investments made by the Company in Unrestricted Subsidiaries
on and after the Effective Date as permitted by this Section
8.08(h)(ii)(B) and (y) no such cash Investment shall be made
Credit Agreement
________________
</PAGE>
<PAGE>
- 94 -
pursuant to this Section 8.08(h)(ii)(B) after the
Acquisition Loan Commitment Termination Date and (iv) 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;
(j) Investments in Restricted Subsidiaries to the
extent necessary to prepay Loans as required by Section 3.04
hereof; and
(k) Investments constituting Restricted Payments made
as permitted by Section 8.09 hereof.
8.09 Restricted Payments. The Company will not, and
___________________
will not permit any of its Subsidiaries to, make any Restricted
Payment, except for:
(a) dividends on common stock of the Company paid in
shares of such stock;
(b) cash payments made by the Company to repurchase
common stock of the Company (other than common stock of the
Company owned beneficially and of record by any of the
Management Investors); provided that (i) no Default has
________
occurred and is continuing or would occur and be continuing
after giving effect to each such repurchase and (ii) no such
repurchase shall be made on any date if, after giving effect
thereto, (A) the Remaining Available Equity Issuance Amount
is less than zero and (B) the sum of the Remaining Available
Excess Cash Flow Amount plus $150,000,000 is less than zero
____
and no such repurchase shall be made as permitted by this
Section 8.09(b)(ii)(B) after the Acquisition Loan Commitment
Termination Date; 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 each such
other Restricted Payment and (ii) no such other Restricted
Payment shall be made on any date if, after giving effect
thereto, (A) the Remaining Available Equity Issuance Amount
is less than zero and (B) the Remaining Available Excess
Cash Flow Amount is less than zero and no such other
Credit Agreement
________________
</PAGE>
<PAGE>
- 95 -
Restricted Payment shall be made as permitted by this
Section 8.09(c)(ii)(B) after the Acquisition Loan Commitment
Termination Date.
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 - 12/31/96 4.50:1
1/1/97 - 12/31/97 4.00:1
1/1/98 - 12/31/98 3.50:1
Thereafter 3.00:1
(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 - 12/31/96 5.50:1
1/1/97 - 12/31/97 5.00:1
1/1/98 - 12/31/98 4.50:1
Thereafter 4.00:1
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 thereafter, to be
less than 2:1.
(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 thereafter, 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).
Credit Agreement
________________
</PAGE>
<PAGE>
- 96 -
(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, and (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 other than paragraph (f) below, any of the
Restricted Subsidiaries may effect Acquisitions of one or
more Stations without the consent of any of the Banks if
either (x) the Acquisition Price payable by the Company and
its Subsidiaries in respect of any such Acquisition is less
than or equal to $50,000,000 or (y) no part of the
Acquisition Price or other amounts payable by the Company
and its Restricted Subsidiaries in respect of any such
Acquisition is paid with the proceeds of Loans hereunder,
provided that, with respect to each such Acquisition:
________
(i) the Administrative Agent shall have received
(with sufficient copies for each of the Banks) (x) not
less than 10 or more than 60 days prior to the proposed
date for the consummation of such Acquisition, 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 after giving effect to such Acquisition
and the concurrent use of the proceeds of any borrowing
of Loans or the incurrence of other Indebtedness to
finance such Acquisition, the Company will be in
compliance with Sections 8.10 and 8.11 hereof and
annexing the Acquisition Agreement relating to such
Acquisition together with any other material ancillary
documents to be executed or delivered in connection
therewith, (y) evidence satisfactory to the
Administrative Agent that, after giving effect to such
Acquisition, the Company will be in compliance with
Sections 8.18 and 8.19 hereof and (z) such other
documents as the Administrative Agent or special New
York counsel to Chase may reasonably request;
Credit Agreement
________________
</PAGE>
<PAGE>
- 97 -
(ii) no Default has occurred and is continuing or
would occur after giving effect to such Acquisition;
and
(iii) 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 provisions of paragraphs (a),
(b) and (c) of this Section 8.12 but subject to the
provisions of paragraph (f) below, any of the Restricted
Subsidiaries may effect (I) the Acquisition of Station KLUV-
FM in Dallas, Texas, and (II) Acquisitions of one or more
other Stations that have been consented to by the Majority
Banks (such consent to be subject to such conditions as the
Majority Banks may determine to be appropriate), provided
________
that with respect to any Acquisition:
(i) the Administrative Agent shall have received
(with sufficient copies for each of the Banks) (x) not
less than 10 or more than 60 days prior to the proposed
date for the consummation of such Acquisition, 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 after giving effect to such Acquisition
and the concurrent use of the proceeds of any borrowing
of Loans or the incurrence of other Indebtedness to
finance such Acquisition, the Company will be in
compliance with Sections 8.10 and 8.11 hereof and
annexing the Acquisition Agreement relating to such
Acquisition together with any other material ancillary
documents to be executed or delivered in connection
therewith, (y) evidence satisfactory to the
Administrative Agent that, after giving effect to such
Acquisition, the Company will be in compliance with
Sections 8.18 and 8.19 hereof and (z) such other
documents as the Administrative Agent or special New
York counsel to Chase may reasonably request; and
Credit Agreement
________________
</PAGE>
<PAGE>
- 98 -
(ii) no Default has occurred and is continuing or
would occur after giving effect to such Acquisition.
(f) Notwithstanding Sections 8.12(d) and 8.12(e)
hereof:
(i) no Acquisition otherwise permitted by said
Sections may be made on any date on or prior to the
Acquisition Loan Commitment Termination Date if, after
giving effect thereto, the aggregate amount of cash
payments made by Restricted Subsidiaries in respect of
Acquisitions made as permitted by said Sections on and
after the Effective Date would exceed the sum of (x)
the Remaining Available Equity Issuance Amount plus (y)
the Remaining Available Excess Cash Flow Amount plus
(y) $250,000,000;
(ii) no Acquisition otherwise permitted by said
Sections may be made on any date after the Acquisition
Loan Commitment Termination Date if, after giving
effect thereto, the Remaining Available Equity Issuance
Amount is less than zero; and
(iii) notwithstanding the provisions of clause (ii)
above, no Acquisition otherwise permitted by said
Sections may be made on any date after the Acquisition
Loan Commitment Termination Date if, after giving
effect thereto, the aggregate amount of cash payments
made (except to the extent such cash payments are made
with the proceeds of one or more Equity Issuances) by
Restricted Subsidiaries in respect of Acquisitions made
as permitted by said Sections on and after the
Effective Date would exceed $350,000,000.
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
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 180 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 99 -
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.
8.14 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, other businesses related to broadcast
communications or programming and other businesses reasonably
incident or related to any of the foregoing 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 and other businesses reasonably
incident or related to any of the foregoing.
Credit Agreement
________________
</PAGE>
<PAGE>
- 100 -
8.15 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 (w) 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, (x) 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, (y) 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
transaction with a Person not an Affiliate 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 Sections 8.09(b) and (c)
hereof.
8.16 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, in the case of the Company, additional shares of
common stock; provided that in connection with any issuance of
________
capital stock neither the Company nor any of its Subsidiaries
shall be obligated, contingently or otherwise, to make any
payment of dividends on account of such capital stock or to
effect any purchase or redemption of such capital stock or to
make any other Restricted Payment with respect to or on account
of such capital stock.
8.17 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
Acquisition Loans made to the Company will be used solely for the
Credit Agreement
________________
</PAGE>
<PAGE>
- 101 -
purpose of financing 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); (b) 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); and (c) the proceeds of Revolving
Credit Loans will be used solely for general corporate purposes
of the Company and its Restricted Subsidiaries, including for
working capital, and also (i) for Capital Expenditures made as
permitted by Section 8.05 hereof, (ii) to refinance Indebtedness
of the Company and its Restricted Subsidiaries, (iii) for cash
Investments made as permitted by Section 8.08(h) hereof, (iv) for
Restricted Payments made as permitted by Section 8.09(b) or
Section 8.09(c) hereof and (v) to finance Acquisitions of
Stations (including net working capital of Stations so Acquired)
permitted by Section 8.12 hereof (in compliance with all
applicable legal and regulatory requirements).
8.18 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.
Credit Agreement
________________
</PAGE>
<PAGE>
- 102 -
8.19 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,
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.
8.20 Modifications of Certain Documents.
__________________________________
(a) The Company will not, without the prior consent of
the Majority Banks, waive, amend or otherwise modify any
provision of any of 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.
8.21 Unrestricted Subsidiaries; Maintenance of
_________________________________________
Separate Corporate Identity.
___________________________
(a) The Company will deliver to the Administrative
Agent (with sufficient copies for each of 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 any of its Subsidiaries, deliver to the
Administrative Agent (with sufficient copies for each of the
Credit Agreement
________________
</PAGE>
<PAGE>
- 103 -
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 8.21, 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
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 8.21.
(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
limiting the other provisions of this Section 8.21, 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.
8.22 Subordinated Debt.
_________________
(a) The Company will not, without the prior consent of
the Majority Banks: (i) waive, amend or otherwise modify any
provision of any of the Subordinated Debt Documents; or (ii)
exercise any option or right (contractual or otherwise) under any
of the Subordinated Debt Documents to prepay, redeem, defease or
acquire, or make, or permit any Subsidiary to make, any payment
the effect of which is to prepay, redeem, defease or acquire, any
of the Subordinated Debt.
(b) Notwithstanding the foregoing provisions of this
Section 8.22, the Company may, subject to the subordination
Credit Agreement
________________
</PAGE>
<PAGE>
- 104 -
provisions applicable thereto: (i) make payments of principal of
and interest on Subordinated Debt (but only in the amounts and at
the times required to be made by the terms thereof); and
(ii) repay, prepay, redeem, retire, purchase or otherwise acquire
(but not defease) Senior Subordinated Notes with the proceeds of
Permitted Replacement Subordinated Debt.
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
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 105 -
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, 8.16, 8.17, 8.20,
8.21(c), 8.21(d) or 8.22 hereof; or the Company shall
default in the performance of any of its obligations under
Section 8.06, 8.15, 8.18 or 8.19 hereof and such default
shall continue unremedied for a period of 15 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
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 106 -
(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 $2,000,000 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
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 107 -
(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 Mel Karmazin shall
(other than by way of testamentary or intestate succession),
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
(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 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 108 -
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 their reason-
able 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
(n) 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
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 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).
Credit Agreement
________________
</PAGE>
<PAGE>
- 109 -
Section 10. The Agents.
__________
10.01 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
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 6.03 hereof have
been satisfied and the Administrative Agent shall be conclusively
entitled to assume that the conditions precedent set forth in
Section 6.03(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 the Majority Banks
referring to the relevant subsection(s) and stating that the
relevant condition(s) have not been satisfied or unless the
Company so notifies such Agent. Each Agent may employ agents and
Credit Agreement
________________
</PAGE>
<PAGE>
- 110 -
attorneys-in-fact and shall not be responsible for the negligence
or misconduct of any such 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 Administra-
tive 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 Administrative Agent or the Collateral Agent, as
applicable, to execute, deliver and/or perform each of the
Security Documents to which it is intended to be a party. 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 under any
of the Security Documents 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),
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 Senior Subordinated Indenture,
the Administrative Agent shall be the "Representative" of the
Banks under and as defined in the Subordinated Indenture.
10.02 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 and such instructions of such Banks and any action taken or
failure to act pursuant thereto shall be binding on all of the
Banks.
Credit Agreement
________________
</PAGE>
<PAGE>
- 111 -
10.03 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 the Administrative Agent receives
such a notice of the occurrence of a Default, the Administrative
Agent shall give prompt notice thereof to each other Agent and
the Banks.
(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,
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 or all of the
Banks.
10.04 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,
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.
10.05 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
Syndicated Loans and, if any of the Commitments are then in
Credit Agreement
________________
</PAGE>
<PAGE>
- 112 -
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, by any Person
(including, without limitation, by the Company, any Bank or
another Agent) 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.
10.06 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
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.
10.07 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 113 -
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.
10.08 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) 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,
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.
10.09 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.
Credit Agreement
________________
</PAGE>
<PAGE>
- 114 -
Section 11. Miscellaneous.
_____________
11.01 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.
11.02 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.
11.03 Expenses, Etc. The Company agrees to pay or
_____________
reimburse each of the Banks and each of the Agents for paying:
(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 and allocated costs of in-house
counsel) 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.
Credit Agreement
________________
</PAGE>
<PAGE>
- 115 -
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).
11.04 Amendments, Etc.
_______________
(a) Any provision of this Agreement (including the
Schedules and Exhibits hereto), any Subsidiary Loan Agreement
(including the Schedules and Exhibits thereto) or the Notes may
be amended only by an instrument in writing signed by the
Borrower party thereto or primarily obligated in respect thereof
and (except as otherwise provided in Section 11.04(b) hereof) the
Majority Banks, or by such Borrower 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), any Subsidiary Loan Agreement (including the
Schedules and Exhibits thereto) or the 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 or of any Subsidiary Loan Agreement 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" 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 any of the
Syndicated Loans or any fee payable to the Banks hereunder or any
date for any scheduled reduction or termination of any of the
Commitments, or reducing the amount of any such scheduled payment
or reduction or termination of the rate at which interest is
payable thereon or the amount of any fee payable to the Banks
hereunder in respect thereof shall require the agreement or
consent of all of the Banks; and (iv) any modification or waiver
extending any date fixed for any scheduled payment of principal
Credit Agreement
________________
</PAGE>
<PAGE>
- 116 -
of or interest on any Money Market Loan or reducing the amount of
any such scheduled payment or the rate at which interest is
payable thereon shall require the agreement or consent of the
Bank holding such Loan.
(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 or any Subsidiary Loan Agreement shall require:
(i) in the case of the conditions precedent specified in
Section 6.01 hereof or any Subsidiary Loan Agreement (other than
Section 6.01(j) hereof or Section 6.01(f) of any Subsidiary Loan
Agreement) and Sections 6.02 and 6.03 hereof, the agreement or
consent of the Majority Banks and (ii) in the case of the
condition precedent specified in Section 6.01(j) hereof or
Section 6.01(f) of any Subsidiary Loan Agreement, the agreement
or consent of all of the Banks.
(c) 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,
the Guarantee Agreement or any Tax Allocation 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.
(d) 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.
(e) 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 117 -
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.
11.05 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
no Subsidiary Borrower may assign any of its rights or obliga-
tions 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.
11.06 Bank Assignments and Participations.
___________________________________
(a) Subject to paragraph (b) below, each Bank may
assign to any other Bank or, with respect to any assignment by
any Bank of its outstanding Loans (other than Money Market Loans)
and/or Commitments, with the consent of the Administrative Agent
and, so long as no Default has occurred and is continuing, the
Company, 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 Class 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 Loans and/or Commitments (if then
in effect) shall be made in such a manner so that the same
proportion of each of its outstanding Loans of each Class and to
each Borrower and Commitments (if then in effect) 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 amounts, Classes and
types of the assignor's Loans and Commitments 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
Loans and Commitments (if then in effect) assigned to it (in
addition to the Loans and Commitments, if any, theretofore held
by such assignee). In connection with the assignment by a Bank
of all or any portion of its Loans and Commitments (if then in
effect) to another Person as permitted hereunder, upon request of
such Bank or such Person, each Borrower will issue promissory
Credit Agreement
________________
</PAGE>
<PAGE>
- 118 -
notes in substantially the form of Exhibit A-1, A-2, A-3, A-4 or
A-5 hereto (as such forms may have been modified), each dated the
date of the Notes originally issued hereunder or under the
related Subsidiary Loan Agreement (or, if interest has been paid
on such Loans, dated the Interest Accrual Date for such Loans)
payable to the order of such Person in a principal amount equal
to the Loans so assigned and otherwise duly completed, and the
assigning Bank shall make an appropriate notation on the schedule
attached to the related Notes held by it as to the principal
amount of the Loans and/or Commitments 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
and/or Commitments held by it, provided that each purchaser of a
________
participation (a "Participant"), except as otherwise provided in
___________
Section 3.02(c) of the Guarantee Agreement 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
Commitments, 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 Loans held by it, and its Commitments, shall be determined
as if such Bank had not sold or agreed to sell any participations
in such Loans and Commitments, and as if such Bank were funding
and maintaining each of such Loans and Commitments in the same
way that it is funding and maintaining the portion of such Loan
and Commitment in which no participations have been sold. In no
event shall a Bank that sells a participation agree with the
Credit Agreement
________________
</PAGE>
<PAGE>
- 119 -
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(n) 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
Commitments 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.
11.07 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
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.
Credit Agreement
________________
</PAGE>
<PAGE>
- 120 -
11.08 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.
11.09 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
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 121 -
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 Senior 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.
Credit Agreement
________________
</PAGE>
<PAGE>
- 122 -
IN WITNESS WHEREOF, the parties hereto have caused this
Second 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
Credit Agreement
________________
</PAGE>
<PAGE>
- 123 -
BANKS
_____
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By /s/John P. White
_____________________
Name: John P. White
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 124 -
ABN AMRO BANK N.V.
By /s/William H. Weld
__________________________
Name: William H. Weld
Title: Group Vice President
By /s/Ann Schwalbenberg
__________________________
Name: Ann Schwalbenberg
Title: Vice President
Address for Notices:
ABN AMRO Bank N.V.
135 South LaSalle Street
Chicago, IL 60603
Attention: William H. Welch
Group Vice President
Telecopier No.: (312) 750-6217
Telephone No.: (312) 443-2323
With copies to:
_______________
ABN AMRO Bank N.V.
500 Park Avenue
New York, NY 10022
Attention: Ann Schwalbenberg
Vice President
Telecopier No.: (212) 644-6908
Telephone No.: (212) 446-4181
Lending Office for all Loans:
500 Park Avenue
New York, NY 10022
Attention: Ann Schwalbenberg
Vice President
Credit Agreement
________________
</PAGE>
<PAGE>
- 125 -
BANK OF AMERICA ILLINOIS
By /s/Nancy L. Sun
______________________________
Name: Nancy L. Sun
Title: Vice President
Address for Notices:
Bank of America Illinois
231 S. LaSalle Street
Chicago, IL 60697
Attention: Jeanie Skepnek
Telecopier No.: (312) 828-3864
Telephone No.: (312) 828-8736
with a copy to:
Bank of America NT & SA
335 Madison Avenue
5th Floor
New York, NY 10017
Attention: Nancy L. Sun
Vice President
Telecopier No.: (212) 503-7173
Telephone No.: (212) 503-8352
Lending Office for all Loans:
Bank of America Illinois
231 S. LaSalle Street
Chicago, IL 60697
Credit Agreement
________________
</PAGE>
<PAGE>
- 126 -
THE BANK OF CALIFORNIA, N.A.
By /s/David L. Chicca
_______________________________
Name: David L. 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) 765-3146
Telephone No.: (415) 765-2671
Lending Office for all Loans:
Credit Agreement
________________
</PAGE>
<PAGE>
- 127 -
BANK OF IRELAND, GRAND CAYMAN BRANCH
By /s/Randolph H. Ross
________________________________
Name: Randolph H. Ross
Title: Vice President
Address for Notices:
Bank of Ireland
640 Fifth Avenue
New York, NY 10019
Telecopier No.: (212) 586-7757
Telephone No.: (212) 397-1733
Attention: Randolph H. Ross
Lending Office for all Loans:
Bank of Ireland
640 Fifth Avenue
New York, NY 10019
Credit Agreement
________________
</PAGE>
<PAGE>
- 128 -
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) 605-1615
Attention: Gretchen Shugart
Director
Lending Office for all Loans:
115 South LaSalle Street - 11th Fl.
Chicago, Illinois 60603
Credit Agreement
________________
</PAGE>
<PAGE>
- 129 -
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) 635-8694
Attention: David Dobies
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) 635-7294
Attention: David Hunt
Credit Agreement
________________
</PAGE>
<PAGE>
- 130 -
THE BANK OF NOVA SCOTIA
By /s/James N. Tryforos
___________________________________
Name: James N. Tryforos
Title: Unit Head
Address for Notices:
The Bank of Nova Scotia
One Liberty Plaza
New York, NY 10006
Attention: Claudia Chifos
Telecopier No.: (212) 225-5091
Telephone No.: (212) 225-5099
Lending Office for all Loans:
One Liberty Plaza
New York, NY 10006
Credit Agreement
________________
</PAGE>
<PAGE>
- 131 -
BANQUE NATIONALE DE PARIS,
NEW YORK BRANCH
By /s/Christopher J. Kiely
_________________________________
Name: Christopher J. Kiely
Title: Vice President
By /s/Serge Desrayaud
_______________________________
Name: Serge Desrayaud
Title: Vice President
Address for Notices:
Banque Nationale de Paris
499 Park Avenue
New York, NY 10022
Attention: Eric Deram
Telecopier No.: (212) 418-8269
Telephone No.: (212) 418-8268
Lending Office for all Loans:
499 Park Avenue
New York, NY 10022
Attention: Julia Requena
Credit Agreement
________________
</PAGE>
<PAGE>
- 132 -
BANQUE PARIBAS
By /s/Eileen M. Burke
__________________________________
Name: Eileen M. Burke
Title: Vice President
By /s/Cynthia D. Hewitt
__________________________________
Name: Cynthia D. Hewitt
Title: Vice President
Address for Notices:
Banque Paribas
787 Seventh Avenue, 32nd Floor
New York, NY 10019
Attention: Eileen Burke
Telecopier No.: (212) 841-2369
Telephone No.: (212) 841-2594
Lending Office for all Loans:
Banque Paribas
787 Seventh Avenue, 33rd Floor
New York, NY 10019
Credit Agreement
________________
</PAGE>
<PAGE>
- 133 -
[THIS PAGE INTENTIONALLY LEFT BLANK]
Credit Agreement
________________
</PAGE>
<PAGE>
- 134 -
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 10017
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 135 -
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By /s/Marcus Edward
__________________________________
Name: Marcus Edward
Title: Vice President
By /s/Dora DeBlasi Hyduk
__________________________________
Name: Dora DeBlasi Hyduk
Title: Vice President
Address for Notices:
Compagnie Financiere de CIC et
de l'Union Europeenne
520 Madison Avenue, 37th Floor
New York, NY 10022
Attention: Marcus Edward
Telecopier No.: (212) 715-4535
Telephone No.: (212) 715-4427
Lending Office for all Loans:
Compagnie Financiere de CIC et
de l'Union Europeenne
520 Madison Avenue, 37th Floor
New York, NY 10022
Credit Agreement
________________
</PAGE>
<PAGE>
- 136 -
CORESTATES BANK, N.A.
By /s/Edward J. Kittrell
_________________________________
Name: Edward J. Kittrell
Title: Vice President
Address for Notices:
CoreStates Bank, N.A.
FC 1-3-188
Centre Square Building
1500 Market Street, West Tower
Philadelphia, PA 19101
Attention: Edward Kittrell
Telecopier No.: (215) 786-7721 /
8448
Telephone No.: (215) 786-4368
Lending Office for all Loans:
CoreStates Bank, N.A.
FC 1-3-188
Centre Square Building
1500 Market Street, West Tower
Philadelphia, PA 19101
Credit Agreement
________________
</PAGE>
<PAGE>
- 137 -
THE DAI-ICHI KANGYO BANK, LIMITED,
NEW YORK BRANCH
By /s/Seiji Imai
___________________________________
Name: Seiji Imai
Title: Assistant Vice President
Address for Notices:
The Dai-Ichi Kangyo Bank, Limited,
New York Branch
One World Trade Center
Suite 4911
New York, NY 10048
Telecopier No.: (212) 432-8441
Telephone No.: (212) 524-0579
Attention: Seiji Imai
Lending Office for all Loans:
The Dai-Ichi Kangyo Bank, Limited,
New York Branch
One World Trade Center
Suite 4911
New York, NY 10048
Credit Agreement
________________
</PAGE>
<PAGE>
- 138 -
THE DAIWA BANK, LIMITED
By /s/J. H. Broadley
___________________________________
Name: J. H. Broadley
Title: Vice President
By /s/B. W. Henry
___________________________________
Name: B. W. Henry
Title: Vice President and Manager
Address for Notices:
The Daiwa Bank, Limited
450 Lexington Avenue
Suite 1700
New York, NY 10017
Telecopier No.: (212) 818-0865
Telephone No.: (212) 808-2338
Attention: James Broadley
Lending Office for all Loans:
The Daiwa Bank, Limited
Chicago Branch
233 S. Wacker Drive
Chicago, IL 60606
Credit Agreement
________________
</PAGE>
<PAGE>
- 139 -
[THIS PAGE INTENTIONALLY LEFT BLANK]
Credit Agreement
________________
</PAGE>
<PAGE>
- 140 -
THE FIRST NATIONAL BANK OF BOSTON
By /s/Lisa C. Gallagher
__________________________________
Name: Lisa C. Gallagher
Title: Director
Address for Notices:
Bank of Boston
100 Federal Street
Boston, MA 02110
Attention: Michelle S. Abrecht
Telecopier No.: (617) 434-3401
Telephone No.: (617) 434-1077
Lending Office for all Loans:
Bank of Boston
Loan Processing
100 Federal Street (01-1B-12)
Boston, MA 02110
Credit Agreement
________________
</PAGE>
<PAGE>
- 141 -
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By /s/James W. Wood
______________________________
Name: James W. Wood
Title: Vice President
Address for Notices:
First Union National Bank
of North Carolina
301 S. College Street TW-19
Charlotte, NC 28288-0735
Telecopier No.: (704) 383-1989
Telephone No.: (704) 374-3242
Attention: James W. Wood
Lending Office for all Loans:
First Union National Bank
of North Carolina
301 S. College Street TW-19
Charlotte, NC 28288-0735
Credit Agreement
________________
</PAGE>
<PAGE>
- 142 -
THE FUJI BANK, LIMITED
By /s/Katsunori Nozawa
Name: Katsunori Nozawa
Title: Vice President and Manager
Address for Notices:
Fuji Bank, Limited
Two World Trade Center, 79th Flr.
New York, NY 10048
Telecopier No.: (212) 488-8216
Telephone No.: (212) 898-2073
Attention: Tina Catapano
Lending Office for all Loans:
Fuji Bank, Limited
Two World Trade Center, 79th Flr.
New York, NY 10048
Credit Agreement
________________
</PAGE>
<PAGE>
- 143 -
LTCB TRUST COMPANY
By /s/Hiroshi Sasaki
___________________________________
Name: Hiroshi Sasaki
Title: Senior Vice President
Address for Notices:
LTCB Trust Company
165 Broadway
New York, NY 10006
Telecopier No.: (212) 608-2371
Telephone No.: (212) 335-4549
Attention: Tetsuya Fukunaga
Lending Office for all Loans:
LTCB Trust Company
165 Broadway
New York, NY 10006
Credit Agreement
________________
</PAGE>
<PAGE>
- 144 -
MIDLAND BANK plc, NEW YORK BRANCH
By /s/John Howker
___________________________________
Name: John Howker
Title: Executive Director
Address for Notices:
Midland Bank plc, New York Branch
140 Broadway
New York, NY 10005
Telecopier No.: (212) 658-2586
Telephone No.: (212) 658-2738
Attention: Martin Brown
Lending Office for all Loans:
Midland Bank plc, New York Branch
140 Broadway
New York, NY 10005
Credit Agreement
________________
</PAGE>
<PAGE>
- 145 -
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By /s/Patricia M. Loret de Hola
___________________________________
Name: Patricia M. Loret de Hola
Title: Senior Vice President
Address for Notices:
The Mitsubishi Trust and
Banking Corporation
520 Madison Avenue
New York, NY 10022
Telecopier No.: (212) 593-4691
Telephone No.: (212) 891-8454
Attention: Patricia De Mola
Lending Office for all Loans:
The Mitsubishi Trust and
Banking Corporation
520 Madison Avenue
New York, NY 10022
Credit Agreement
________________
</PAGE>
<PAGE>
- 146 -
NATIONAL BANK OF CANADA
By /s/Teresa Carrasco
___________________________________
Name: Teresa Carrasco
Title: Vice President
By /s/Gaeta R. Fron
___________________________________
Name: Gaeta R. Fron
Title: Vice President
Address for Notices:
National Bank of Canada
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
125 West 55th Street
New York, NY 10019
Credit Agreement
________________
</PAGE>
<PAGE>
- 147 -
NATIONAL WESTMINSTER BANK USA
By /s/Michael A. Cerullo
___________________________________
Name: Michael A. Cerullo
Title: Vice President
Address for Notices:
National Westminster Bank USA
175 Water Street, 28th Floor
New York, NY 10038
Attention: Michael A. Cerullo
Telecopier No.: (212) 602-2663
Telephone No.: (212) 602-2078
Lending Office for all Loans:
National Westminster Bank USA
175 Water Street, 28th Floor
New York, NY 10038
Credit Agreement
________________
</PAGE>
<PAGE>
- 148 -
NATIONSBANK OF TEXAS, N.A.
By /s/Doug Stuart
___________________________________
Name: Doug Stuart
Title: Vice President
Address for Notices:
NationsBank of Texas, N.A.
901 Main Street
64th Floor
Dallas, TX 75202
Telecopier No.: (214) 508-9390
Telephone No.: (214) 508-0988
Attention: Chad Coben
Lending Office for all Loans:
NationsBank of Texas, N.A.
901 Main Street
64th Floor
Dallas, TX 75202
Credit Agreement
________________
</PAGE>
<PAGE>
- 149 -
NBD BANK, N.A.
By /s/Carolyn J. Parks
___________________________________
Name: Carolyn J. Parks
Title: Vice President
Address for Notices:
NBD Bank, N.A.
611 Woodward Ave.
Detroit, MI 48226
Telecopier No.: (203) 221-1486
Telephone No.: (203) 227-5881
Attention: Carolyn J. Parks
Lending Office for all Loans:
NBD Bank, N.A.
611 Woodward Ave.
Detroit, MI 48226
Credit Agreement
________________
</PAGE>
<PAGE>
- 150 -
THE NIPPON CREDIT BANK, LTD.
By /s/David Carrington
___________________________________
Name: David Carrington
Title: Vice President and Manager
Address for Notices:
The Nippon Credit Bank, Ltd.
245 Park Avenue - 30th Flr.
New York, NY 10167
Telecopier No.: (212) 490-3895
Telephone No.: (212) 984-1338
Attention: David C. Carrington
Lending Office for all Loans:
The Nippon Credit Bank, Ltd.
245 Park Avenue - 30th Flr.
New York, NY 10167
Credit Agreement
________________
</PAGE>
<PAGE>
- 151 -
PNC BANK, NATIONAL ASSOCIATION
By /s/Marlene S. Dooner
___________________________________
Name: Marlene S. Dooner
Title: Vice President
Address for Notices:
PNC Bank
Broad & Chestnut Street - 9th Flr.
Philadelphia, PA 19110
Telecopier No.: (215) 585-6680
Telephone No.: (215) 585-6468
Attention: Marlene S. Dooner
Lending Office for all Loans:
PNC Bank
Broad & Chestnut Street - 9th Flr.
Philadelphia, PA 19110
Credit Agreement
________________
</PAGE>
<PAGE>
- 152 -
ROYAL BANK OF SCOTLAND PLC
By /s/Russell M. Gibson
___________________________________
Name: Russell M. Gibson
Title: Vice President and Deputy
Manager
Address for Notices:
Royal Bank of Scotland PLC
63 Wall Street
New York, NY 10005
Telecopier No.: (212) 269-8929
Telephone No.: (212) 269-1700
Attention: Russell Gibson
Lending Office for all Loans:
Royal Bank of Scotland PLC
63 Wall Street
New York, NY 10005
Credit Agreement
________________
</PAGE>
<PAGE>
- 153 -
SHAWMUT BANK CONNECTICUT, N.A.
By /s/Robert F. West
___________________________________
Name: Robert F. West
Title: Director
Address for Notices:
Shawmut Bank Connecticut, N.A.
777 Main Street
Hartford, CT 06115
Telecopier No.: (203) 986-4621
Telephone No.: (203) 548-3363
Attention: Wendy E. Klepper
Lending Office for all Loans:
Shawmut Bank Connecticut, N.A.
777 Main Street
Hartford, CT 06115
Credit Agreement
________________
</PAGE>
<PAGE>
- 154 -
SOCIETE GENERALE
By /s/Mark Vigil
___________________________________
Name: Mark Vigil
Title: Vice President
Address for Notices:
Societe Generale
1221 Avenue of the Americas
New York, NY 10020
Telecopier No.: (212) 278-6240
Telephone No.: (212) 278-7350
Attention: Mark Vigil
Lending Office for all Loans:
Societe Generale
1221 Avenue of the Americas
New York, NY 10020
Credit Agreement
________________
</PAGE>
<PAGE>
- 155 -
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 156 -
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By /s/Y. Kawamura
___________________________________
Name: Y. Kawamura
Title: Joint General Manager
Address for Notices:
The Sumitomo Bank, Limited,
New York Branch
277 Park Avenue
New York, NY 10172
Telecopier No.: (212) 224-5188
Telephone No.: (212) 224-4134
Attention: Hiro Hyakatome
Lending Office for all Loans:
The Sumitomo Bank, Limited,
New York Branch
277 Park Avenue
New York, NY 10172
Credit Agreement
________________
</PAGE>
<PAGE>
- 157 -
THE SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH
By /s/Hidehiko Asai
___________________________________
Name: Hidehiko Asai
Title: Deputy General Manager
Address for Notices:
The Sumitomo Trust & Banking Co., Ltd.,
New York Branch
527 Madison Avenue
New York, NY 10022
Telecopier No.: (212) 418-4848
Telephone No.: (212) 326-0781
Attention: Robin Schreiber
Lending Office for all Loans:
The Sumitomo Trust & Banking Co., Ltd.,
New York Branch
527 Madison Avenue
New York, NY 10022
Credit Agreement
________________
</PAGE>
<PAGE>
- 158 -
UNION BANK
By /s/Gabriel Bergh
___________________________________
Name: Gabriel Bergh
Title: Senior Vice President
Address for Notices:
Union Bank
Communications/Media Group
445 South Figueroa Street
Los Angeles, CA 90071
Attention: Bill D. Gooch
Telecopier No.: (213) 236-5747
Telephone No.: (213) 236-6408
Lending Office for all Loans:
Communications/Media Group
445 South Figueroa Street
Los Angeles, CA 90071
Credit Agreement
________________
</PAGE>
<PAGE>
- 159 -
AGENTS
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
By /s/John P. White
___________________________________
Name: John P. White
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 160 -
BANK OF AMERICA ILLINOIS,
as Co-Agent
By /s/Nancy L. Sun
________________________________
Name: Nancy L. Sun
Title: Vice President
Address for Notices:
Bank of America Illinois
231 S. LaSalle Street
Chicago, IL 60697
Attention: Jeanie Skepnek
Telecopier No.: (312) 828-3864
Telephone No.: (312) 828-8736
with a copy to:
Bank of America NT & SA
335 Madison Avenue
5th Floor
New York, NY 10017
Attention: Nancy L. Sun
Vice President
Telecopier No.: (212) 503-7173
Telephone No.: (212) 503-8352
Credit Agreement
________________
</PAGE>
<PAGE>
- 161 -
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) 605-1615
Attention: Gretchen Shugart
Director
Credit Agreement
________________
</PAGE>
<PAGE>
- 162 -
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 163 -
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
Credit Agreement
________________
</PAGE>
<PAGE>
- 164 -
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE,
as Co-Agent
By /s/Marcus Edward
___________________________________
Name: Marcus Edward
Title: Vice President
By /s/Dora DeBlasi Hyduk
___________________________________
Name: Dora DeBlasi Hyduk
Title: Vice President
Address for Notices:
Compagnie Financiere de CIC et
de l'Union Europeenne
520 Madison Avenue, 37th Floor
New York, NY 10022
Attention: Marcus Edward
Telecopier No.: (212) 715-4535
Telephone No.: (212) 715-4427
Credit Agreement
________________
</PAGE>
<PAGE>
- 165 -
THE FIRST NATIONAL BANK OF BOSTON,
as Co-Agent
By /s/Lisa C. Gallagher
___________________________________
Name: Lisa C. Gallagher
Title: Director
Address for Notices:
Bank of Boston
100 Federal Street
Boston, MA 02110
Attention: Michele S. Abrecht
Telecopier No.: (617) 434-3401
Telephone No.: (617) 434-1077
Credit Agreement
________________
</PAGE>
<PAGE>
- 166 -
NATIONAL WESTMINSTER BANK USA,
as Co-Agent
By /s/Michael A. Cerullo
___________________________________
Name: Michael A. Cerullo
Title: Vice President
Address for Notices:
National Westminster Bank USA
175 Water Street, 28th Floor
New York, NY 10038
Attention: Michael A. Cerullo
Telecopier No.: (212) 602-2663
Telephone No.: (212) 602-2078
Credit Agreement
________________
</PAGE>
<PAGE>
- 167 -
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
Credit Agreement
________________
</PAGE>
<PAGE>
SCHEDULE I
__________
Infinity Loans and Commitments
______________________________
Acquisition Revolving
Infinity Loan Credit Loan
Name of Bank Term Loans Commitments Commitments
____________ __________ ___________ ___________
The Chase Manhattan
Bank, N.A. $ 2,207,142.86 $ 10,714,285.71 $ 6,428,571.43
ABN Amro Bank N.V. $ 1,545,000.00 $ 7,500,000.00 $ 4,500,000.00
Bank of America Illinois $ 1,839,285.71 $ 8,928,571.43 $ 5,357,142.86
The Bank of California $ 1,471,428.57 $ 7,142,857.14 $ 4,285,714.29
Bank of Ireland $ 735,714.29 $ 3,571,428.57 $ 2,142,857.14
Bank of Montreal $ 1,839,285.71 $ 8,928,571.43 $ 5,357,142.86
The Bank of New York $ 1,839,285.71 $ 8,928,571.43 $ 5,357,142.86
The Bank of Nova Scotia $ 1,765,714.29 $ 8,571,428.57 $ 5,142,857.14
Banque Nationale de Paris $ 1,471,428.57 $ 7,142,857.14 $ 4,285,714.29
Banque Paribas $ 1,765,714.29 $ 8,571,428.57 $ 5,142,857.14
Chemical Bank $ 1,839,285.71 $ 8,928,571.43 $ 5,357,142.86
Compagnie Financiere
de CIC et de l'Union
Europeenne $ 1,839,285.71 $ 8,928,571.43 $ 5,357,142.86
CoreStates Bank, N.A. $ 1,545,000.00 $ 7,500,000.00 $ 4,500,000.00
Dai-Ichi Kango Bank $ 1,103,571.43 $ 5,357,142.86 $ 3,214,285.71
Daiwa Bank $ 1,103,571.43 $ 5,357,142.86 $ 3,214,285.71
First National
Bank of Boston $ 1,839,285.71 $ 8,928,571.43 $ 5,357,142.86
First Union National Bank $ 1,545,000.00 $ 7,500,000.00 $ 4,500,000.00
Fuji Bank, Limited $ 1,545,000.00 $ 7,500,000.00 $ 4,500,000.00
The Long Term Credit Bank $ 1,103,571.43 $ 5,357,142.86 $ 3,214,285.71
Midland Bank plc $ 1,545,000.00 $ 7,500,000.00 $ 4,500,000.00
Mitsubishi Trust $ 1,545,000.00 $ 7,500,000.00 $ 4,500,000.00
National Bank of Canada $ 882,857.14 $ 4,285,714.29 $ 2,571,428.57
National Westminster
Bank U.S.A. $ 1,839,285.71 $ 8,928,571.43 $ 5,357,142.86
NationsBank of Texas, N.A. $ 1,765,714.29 $ 8,571,428.57 $ 5,142,857.14
NBD Bank $ 1,103,571.43 $ 5,357,142.86 $ 3,214,285.71
Nippon Credit Bank $ 1,545,000.00 $ 7,500,000.00 $ 4,500,000.00
PNC Bank $ 1,103,571.43 $ 5,357,142.86 $ 3,214,285.71
Royal Bank of Scotland $ 1,103,571.43 $ 5,357,142.86 $ 3,214,285.71
Shawmut Bank $ 1,545,000.00 $ 7,500,000.00 $ 4,500,000.00
Societe Generale $ 1,471,428.57 $ 7,142,857.14 $ 4,285,714.29
Society National Bank $ 1,765,714.29 $ 8,571,428.57 $ 5,142,857.14
The Sumitomo Bank, Ltd. $ 1,103,571.43 $ 5,357,142.86 $ 3,214,285.71
Sumitomo Trust $ 1,471,428.57 $ 7,142,857.14 $ 4,285,714.29
Union Bank $ 1,765,714.29 $ 8,571,428.57 $ 5,142,857.14
============== =============== ===============
$51,500,000.00 $250,000,000.00 $150,000,000.00
Schedule I to Credit Agreement
______________________________
</PAGE>
<PAGE>
- 2 -
Subsidiary Term Loans
_____________________
Infinity of Infinity of
HBC Boston California SBC
Name of Bank Term Loans Term Loans Terms Loans Term Loans
____________ __________ ___________ ___________ __________
The Chase Manhattan
Bank, N.A. $ 2,346,428.57 $ 1,285,714.29 $ 4,671,428.57 $ 2,346,428.57
ABN Amro Bank N.V. $ 1,642,500.00 $ 900,000.00 $ 3,270,000.00 $ 1,642,500.00
Bank of America
Illinois $ 1,955,357.14 $ 1,071,428.57 $ 3,892,857.14 $ 1,955,357.14
The Bank of
California $ 1,564,285.71 $ 857,142.86 $ 3,114,285.71 $ 1,564,285.71
Bank of Ireland $ 782,142.86 $ 428,571.43 $ 1,557,142.86 $ 782,142.88
Bank of Montreal $ 1,955,357.14 $ 1,071,428.57 $ 3,892,857.14 $ 1,955,357.14
The Bank of New
York $ 1,955,357.14 $ 1,071,428.57 $ 3,892,857.14 $ 1,955,357.14
The Bank of Nova
Scotia $ 1,877,142.86 $ 1,028,571.43 $ 3,737,142.86 $ 1,877,142.86
Banque Nationale
de Paris $ 1,564,285.71 $ 857,142.86 $ 3,114,285.71 $ 1,564,285.71
Banque Paribas $ 1,877,142.86 $ 1,028,571.43 $ 3,737,142.86 $ 1,877,142.86
Chemical Bank $ 1,955,357.14 $ 1,071,428.57 $ 3,892,857.14 $ 1,955,357.14
Compagnie Financiere
de CIC et de l'Union
Europeenne $ 1,955,357.14 $ 1,071,428.57 $ 3,892,857.14 $ 1,955,357.14
CoreStates Bank,
N.A. $ 1,642,500.00 $ 900,000.00 $ 3,270,000.00 $ 1,642,500.00
Dai-Ichi Kango Bank $ 1,173,214.29 $ 642,857.14 $ 2,335,714.29 $ 1,173,214.29
Daiwa Bank $ 1,173,214.29 $ 642,857.14 $ 2,335,714.29 $ 1,173,214.29
First National
Bank of Boston $ 1,955,357.14 $ 1,071,428.57 $ 3,892,857.14 $ 1,955,357.14
First Union
National Bank $ 1,642,500.00 $ 900,000.00 $ 3,270,000.00 $ 1,642,500.00
Fuji Bank, Limited $ 1,642,500.00 $ 900,000.00 $ 3,270,000.00 $ 1,642,500.00
The Long Term
Credit Bank $ 1,173,214.29 $ 642,857.14 $ 2,335,714.29 $ 1,173,214.29
Midland Bank plc $ 1,642,500.00 $ 900,000.00 $ 3,270,000.00 $ 1,642,500.00
Mitsubishi Trust $ 1,642,500.00 $ 900,000.00 $ 3,270,000.00 $ 1,642,500.00
National Bank of
Canada $ 938,571.43 $ 514,285.71 $ 1,868,571.43 $ 938,571.43
National Westminster
Bank U.S.A. $ 1,955,357.14 $ 1,071,428.57 $ 3,892,857.14 $ 1,955,357.14
NationsBank $ 1,877,142.86 $ 1,028,571.43 $ 3,737,142.86 $ 1,877,142.86
NBD Bank $ 1,173,214.29 $ 642,857.14 $ 2,335,714.29 $ 1,173,214.29
Nippon Credit Bank $ 1,642,500.00 $ 900,000.00 $ 3,270,000.00 $ 1,642,500.00
PNC Bank $ 1,173,214.29 $ 642,857.14 $ 2,335,714.29 $ 1,173,214.29
Royal Bank of
Scotland $ 1,173,214.29 $ 642,857.14 $ 2,335,714.29 $ 1,173,214.29
Shawmut Bank $ 1,642,500.00 $ 900,000.00 $ 3,270,000.00 $ 1,642,500.00
Societe Generale $ 1,564,285.71 $ 857,142.86 $ 3,114,285.71 $ 1,564,285.71
Society National
Bank $ 1,877,142.86 $ 1,028,571.43 $ 3,737,142.86 $ 1,877,142.86
The Sumitomo Bank,
Ltd. $ 1,173,214.29 $ 642,857.14 $ 2,335,714.29 $ 1,173,214.29
Sumitomo Trust $ 1,564,285.71 $ 857,142.86 $ 3,114,285.71 $ 1,564,285.71
Union Bank $ 1,877,142.86 $ 1,028,571.43 $ 3,737,142.86 $ 1,877,142.86
============== ============== =============== ==============
$54,750,000.00 $30,000,000.00 $109,000,000.00 $54,750,000.00
</PAGE>
<PAGE>
SCHEDULE II
Permitted Liens
_______________
Liens in existence on the date hereof in respect of
Property and assets or business of the Company or any of its
Restricted Subsidiaries set forth below:
1. Security interest granted by Infinity Broadcasting
Corporation of Los Angeles to Teleprograms, Inc. with
respect to a motor vehicle.
2. Security interest granted by Infinity Broadcasting
Corporation of Illinois to NBD Chicago Bank with
respect to a telephone system.
The total amount of Indebtedness secured by the above-
described Liens does not exceed $1,000,000
Schedule II to Credit Agreement
_______________________________
</PAGE>
<PAGE>
SCHEDULE III
Material Agreements
___________________
1. Indenture dated as of March 24, 1992 (the "Senior
______
Subordinated Indenture") between the Company and Bank
______________________
of Montreal Trust Company, as trustee.
2. 10 3/8% Senior Subordinated Notes due 2002 issued
pursuant to the Senior Subordinated Indenture in an
aggregate outstanding principal amount equal to
$200,000,000.
3. The Company has outstanding on the date hereof the
following Interest Rate Protection Agreements:
(a) an interest rate swap agreement with The Chase
Manhattan Bank covering a notional principal
amount of $15,000,000 expiring February 9, 1996
under which the Company receives quarterly three
month LIBOR interest and the Company pays
quarterly 4.80% fixed interest;
(b) an interest rate swap agreement with The Bank of
New York covering a notional principal amount of
$15,000,000 expiring February 9, 1996 under which
the Company receives quarterly three month LIBOR
interest and the Company pays quarterly 4.81%
fixed interest;
(c) an interest rate swap agreement with Bank of
Montreal (Chicago Branch) covering a notional
principal amount of $25,000,000 expiring
January 15, 1996 under which the Company receives
quarterly three month LIBOR interest and the
Company pays quarterly 5.25% fixed interest; and
(d) an interest rate swap agreement with Bank of
Montreal (Chicago Branch) covering a notional
principal amount of $25,000,000 expiring
January 25, 1996 under which the Company receives
quarterly three month LIBOR interest and the
Company pays quarterly 5.14% fixed interest.
4. Management Agreement, dated as of February 3, 1994,
between Westwood One, Inc. and the Company.
5. Asset Purchase Agreement, dated as of September 12,
1994, by and between TK Communications, Inc. and
Infinity Broadcasting Corporation of Dallas ("Dallas"),
pursuant to which Dallas will purchase all of the
assets relating to the operation of radio stations
KLUV-FM, Dallas, Texas, for a purchase price of $50,100,000.
Schedule III to Credit Agreement
________________________________
</PAGE>
<PAGE>
SCHEDULE IV
Subsidiaries and Investments
____________________________
RESTRICTED SUBSIDIARIES
_______________________
Percentage
of Ownership
Jurisdiction of by the Company or
Name of Subsidiary Incorporation its Subsidiaries
__________________ _______________ ___________________
1. The Audio House, Inc. California 100% by the Company
2. C&W Land Corporation New Jersey 100% by Hit Radio,
Inc.
3. Hemisphere Broadcasting
Corporation Delaware 100% by the Company
4. Hit Radio, Inc. New York 80% by Sagittarius
Broadcasting
Corporation, 20%
by the Company
5. Infinity Broadcasting Delaware 100% by the Company
Corporation of
Atlanta
6. Infinity Broadcasting New York 100% by Infinity
Corporation of Broadcasting
Baltimore Corporation of
Maryland
7. Infinity Broadcasting Delaware 100% by the Company
Corporation of
Boston
8. Infinity Broadcasting Delaware 100% by the Company
Corporation of
California
9. Infinity Broadcasting Delaware 100% by the Company
Corporation of
Chicago
10. Infinity Broadcasting Delaware 100% by the Company
Corporation of Dallas
11. Infinity Broadcasting Delaware 100% by the Company
Corporation of
Detroit
Schedule IV to Credit Agreement
_______________________________
</PAGE>
<PAGE>
- 2 -
12. Infinity Broadcasting
Corporation of
Florida Delaware 100% by the Company
13. Infinity Broadcasting
Corporation of
Glendale Delaware 100% by the Company
14. Infinity Broadcasting
Corporation of
Illinois Delaware 100% by the Company
15. Infinity Broadcasting
Corporation of
Los Angeles Delaware 100% by the Company
16. Infinity Broadcasting
Corporation of
Maryland Delaware 100% by the Company
17. Infinity Broadcasting
Corporation of
Michigan Delaware 100% by the Company
18. Infinity Broadcasting
Corporation of
New York Delaware 100% by the Company
19. Infinity Broadcasting
Corporation of
Pennsylvania Pennsylvania 100% by the Company
20. Infinity Broadcasting
Corporation of
Philadelphia Delaware 100% by the Company
21. Infinity Broadcasting
Corporation of
Tampa Delaware 100% by the Company
22. Infinity Broadcasting
Corporation of Texas Delaware 100% by the Company
23. Infinity Broadcasting
Corporation of
Washington, D.C. Delaware 100% by the Company
24. Infinity Ventures,
Inc. Delaware 100% by the Company
Schedule IV to Credit Agreement
_______________________________
</PAGE>
<PAGE>
- 3 -
25. Infinity WLIF, Inc. Maryland 100% by Infinity
Broadcasting
Corporation of
Baltimore
26. Infinity WLIF-AM, Inc. Maryland 100% by Infinity
Broadcasting
Corporation of
Baltimore
27. Sagittarius
Broadcasting
Corporation New York 100% by the Company
28. 13 Radio Corporation Delaware 100% by the Company
Schedule IV to Credit Agreement
_______________________________
</PAGE>
<PAGE>
UNRESTRICTED SUBSIDIARIES
_________________________
Percentage
of Ownership
Jurisdiction of by the Company or
Name of Subsidiary Incorporation its Subsidiaries
__________________ _______________ ______________________
Infinity Network Inc. Delaware 100% by the Company
UCGI, Inc. (formerly Delaware 100% by Infinity
known as Unistar Network Inc.
Communications
Group, Inc.)
Schedule IV to Credit Agreement
_______________________________
</PAGE>
<PAGE>
INVESTMENTS
1. In 1981, the Company made unsecured, non-interest
bearing loans of $600,000 to each of Michael A. Wiener
and Gerald Carrus for their personal use. Each of them
executed a promissory note for the full amount of his
loan.
Schedule IV to Credit Agreement
_______________________________
</PAGE>
<PAGE>
SCHEDULE V
Litigation
__________
1. On November 20, 1990, the FCC issued a Notice of
_________
Apparent Liability for Monetary Forfeiture ("NAL") with respect
__________________________________________
to the broadcast by stations WXRK(FM), WYSP(FM), and WJFK-FM of
certain allegedly indecent material contained within "The Howard
Stern Show." On October 23, 1992, the FCC's Staff issued a
Memorandum Opinion and Order in which it determined that each of
____________________________
the three stations was liable for a forfeiture in the amount of
$2,000 per station. Two Petitions for Reconsideration filed by
the Company were subsequently denied by the FCC, and the FCC's
action became administratively final in October, 1993. In
December, 1993, the Company notified the FCC that it did not
intend to remit the forfeiture and instead wished to avail itself
of United States District Court de novo review, which must, by
__ ____
statute, be initiated by the government in the form of a
collection action. The government has taken no further action in
the matter.
2. On December 18, 1992, the FCC issued an NAL
advising the Company that it may be liable for a $600,000
monetary forfeiture for the broadcast by WXRK(FM), WYSP(FM), and
WJFK-FM of allegedly indecent material in several segments of
"The Howard Stern Show." The NAL stated that additional
enforcement action would result if additional violations of the
indecency regulations have occurred or should occur, and that
further action could include additional monetary forfeitures,
renewal of licenses for short (i.e., less than seven years) terms
____
or initiation of proceedings directed to the Company's
qualifications to remain an FCC licensee. On February 23, 1993,
the Company filed a Response with the FCC, vigorously asserting
that the cited material is not indecent and raising other
defenses. The matter is currently pending before the FCC.
3. On August 12, 1993, the FCC issued an NAL in the
amount of $500,000 against stations WJFK(AM) and WJFK-FM,
WXRK(FM), and WYSP(FM) relating to the broadcast of allegedly
indecent material within "The Howard Stern Show" on certain dates
in November and December, 1992 and January, 1993. The NAL stated
that if additional violations of FCC's indecency regulations
should occur, further enforcement action could include
proceedings focusing upon the Company's qualifications to be an
FCC licensee. On October 15, 1993, the Company filed a Response
which vigorously contested the allegations made in the NAL. The
matter is pending before the FCC.
4. On February 1, 1994, the FCC released an NAL in the
amount of $400,000 against stations WXRK(FM), WYSP(FM) and
WJFK(AM & FM) relating to the broadcast of allegedly indecent
material within "The Howard Stern Show" on four dates in August,
Schedule V to Credit Agreement
______________________________
</PAGE>
<PAGE>
- 2 -
September and October, 1993. The Company's response was filed on
April 4, 1994, and vigorously contested the allegations of the
NAL. The matter is pending before the FCC.
5. On May 20, 1994, the FCC released an NAL in the
amount of $200,000 against Stations WXRK(FM), WJFK(AM & FM) and
WYSP(FM) relating to the broadcast of allegedly indecent material
within "The Howard Stern Show" on two dates, one in December,
1993 and one in January, 1994. The Company's response to the NAL
was filed on July 18, 1994, and vigorously contested the
allegations of the NAL. The matter is pending before the FCC.
6. On August 11, 1992, Hemisphere Broadcasting
Corporation, a subsidiary of the Company and licensee of Station
WBCN, received an inquiry letter from the FCC with respect to a
complaint alleging that the Station had broadcast an indecent
joke on its morning drive time program. On October 1, 1992, the
Company responded to the FCC's inquiry letter, contesting the
allegations contained therein. The matter is currently pending
at the FCC.
7. On August 5, 1993, an organization known as
Americans for Responsible Television ("ART") filed a pleading
styled as a Formal Petition to Deny against the Company's
application for consent to assignment of the KRTH, Los Angeles,
license. The Company filed an Opposition to the Petition on
August 16, 1993, and ART filed a Reply on August 23, 1993. On
approximately October 21, 1993, Mr. Al Westcott filed a late-
filed Petition to Deny the KRTH assignment application. On
February 1, 1994, the FCC granted the KRTH application and denied
both Petitions, and the Company closed the KRTH acquisition on
February 15, 1994. On March 3, 1994, ART filed a Petition for
Reconsideration of the FCC's grant, and on April 13, 1994, the
Company filed an Opposition thereto. The FCC has not yet acted
on these filings. Accordingly, the FCC's grant of the KRTH has
not become a Final Order, and the application remains pending
under the FCC's rules.
8. On November 3, 1994, ART filed a Petition to Deny
against the Company's application for FCC consent to the
assignment of the KLUV-FM, Dallas, Texas license. The arguments
advanced by ART were similar to those set forth in its Petition
against the KRTH assignment. ART cites two complaints relating
to allegedly indecent broadcasts not previously considered by the
FCC, one filed in March, 1994 relating to broadcasts on two
occasions on the Company's Station WBCN in February and March,
1994, and another relating to a September, 1994 broadcast on
Station WRNO in New Orleans, a station not licensed to the
Company, which carries the Howard Stern Show. On November 17,
1994, the Company filed an Opposition to the Petition which
vigorously contested the allegations set forth in the Petition,
Schedule V to Credit Agreement
______________________________
</PAGE>
<PAGE>
- 3 -
and ART filed a Reply on November 23, 1994. The matter is
currently pending at the FCC.
Schedule V to Credit Agreement
______________________________
</PAGE>
<PAGE>
SCHEDULE VI
Conflicts with Certain Agreements
_________________________________
None.
Schedule VI to Credit Agreement
_______________________________
</PAGE>
<PAGE>
SCHEDULE VII
Taxes
None.
Schedule VII to Credit Agreement
________________________________
</PAGE>
<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 Second Amended and Restated Credit Agreement dated as of
December 22, 1994 (as amended, modified and supplemented and in
effect from time to time, the "Credit Agreement") between the
________________
Company, the lenders party thereto, The Chase Manhattan Bank
(National Association), as Administrative Agent, Bank of America
Illinois, Bank of Montreal, The Bank of New York, Chemical Bank,
Compagnie Financiere de CIC et de l'Union Europeenne, The First
National Bank of Boston and National Westminster Bank USA, 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.
Notes
_____
</PAGE>
<PAGE>
- 2 -
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 Senior 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:
Notes
_____
</PAGE>
<PAGE>
- 3 -
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>
<PAGE>
EXHIBIT A-2
[Form of Infinity Acquisition 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 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 Second Amended and Restated Credit Agreement
dated as of December 22, 1994 (as amended, modified and
supplemented and in effect from time to time, the "Credit
______
Agreement") between the Company, the lenders party thereto, The
_________
Chase Manhattan Bank (National Association), as Administrative
Agent, Bank of America Illinois, Bank of Montreal, The Bank of
New York, Chemical Bank, Compagnie Financiere de CIC et de
l'Union Europeenne, The First National Bank of Boston and
National Westminster Bank USA, 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
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
Notes
_____
</PAGE>
<PAGE>
- 2 -
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 Senior 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:
Notes
_____
</PAGE>
<PAGE>
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
_________ ______ ____ ________ ________ _________ ______ _________
Notes
_____
</PAGE>
<PAGE>
- 3 -
EXHIBIT A-3
[Form of Revolving Credit 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 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 Revolving Credit Notes referred to
in the Second Amended and Restated Credit Agreement dated as of
December 22, 1994 (as amended, modified and supplemented and in
effect from time to time, the "Credit Agreement") between the
________________
Company, the lenders party thereto, The Chase Manhattan Bank
(National Association), as Administrative Agent, Bank of America
Illinois, Bank of Montreal, The Bank of New York, Chemical Bank,
Compagnie Financiere de CIC et de l'Union Europeenne, The First
National Bank of Boston and National Westminster Bank USA, as Co-
Agents, and Chemical Bank, as Collateral Agent, and evidences
Revolving Credit Loans made by the Bank thereunder. Capitalized
terms used in this Note 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.
Notes
_____
</PAGE>
<PAGE>
- 2 -
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 Senior 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:
Notes
_____
</PAGE>
<PAGE>
- 3 -
SCHEDULE OF REVOLVING CREDIT LOANS
This Note evidences Revolving Credit 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>
<PAGE>
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 "Borrower"), 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 Borrower 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 Borrower, 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 [Amended
and Restated] Loan Agreement dated as of _________, 19__ (as
amended, modified and supplemented and in effect from time to
time, the "Loan Agreement") between the Borrower 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.
Notes
_____
</PAGE>
<PAGE>
- 2 -
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:
Notes
_____
</PAGE>
<PAGE>
- 3 -
SCHEDULE OF LOANS
This Note evidences Loans assumed, made, Continued or
Converted as contemplated by or under the within-described Loan
Agreement to the Borrower, 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>
<PAGE>
EXHIBIT A-5
[Form of Money Market 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 aggregate unpaid principal amount of the
Money Market 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 Money Market
Loan, at such office, in like money and funds, for the period
commencing on the date of such Money Market Loan until such Money
Market Loan shall be paid in full, at the rates per annum and on
the dates provided in the Credit Agreement.
The date, amount, Type, interest rate, and maturity date of
each Money Market 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, provided that the failure of the
________
Bank to make any such recordation or endorsement shall not affect
the obligations of the Company to make a payment when due of any
amount owing under the Credit Agreement or hereunder in respect
of the Money Market Loans made by the Bank.
This Note is one of the Money Market Notes referred to in
the Second Amended and Restated Credit Agreement dated as of
December 22, 1994 (as modified and supplemented and in effect
from time to time, the "Credit Agreement") between the Company,
________________
the lenders party thereto, The Chase Manhattan Bank (National
Association), as Administrative Agent, Bank of America Illinois,
Bank of Montreal, The Bank of New York, Chemical Bank, Compagnie
Financiere de CIC et de l'Union Europeenne, The First National
Bank of Boston and National Westminster Bank USA, as Co-Agents,
and Chemical Bank, as Collateral Agent, and evidences Money
Market Loans made by the Bank thereunder. Terms used but not
defined in this Note have the respective meanings assigned to
them in the Credit Agreement.
Notes
_____
</PAGE>
<PAGE>
- 2 -
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and
for prepayments of Money Market 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.
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:
Notes
_____
</PAGE>
<PAGE>
- 3 -
SCHEDULE OF MONEY MARKET LOANS
This Note evidences Money Market Loans made 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 maturing on the dates set forth below, subject to the
payments and prepayments of principal set forth below:
Prin-
cipal Amount Unpaid
Amount Type Maturity Paid Prin-
Date of of of Interest Date of or cipal Notation
Loan Loan Loan Rate Loan Prepaid Amount Made by
_______ _______ ____ ________ ________ ________ _______ ________
EXHIBIT G
[Form of Confidentiality Agreement]
CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Second Amended and Restated Credit Agreement dated
as of December 22, 1994 between Infinity
Broadcasting Corporation; the lenders party
thereto; The Chase Manhattan Bank (National
Association), as Administrative Agent; Bank of
America Illinois, Bank of Montreal, The Bank of
New York, Chemical Bank, Compagnie Financiere de
CIC et de l'Union Europeenne, The First National
Bank of Boston and National Westminster Bank USA,
as Co-Agents; and Chemical Bank, as Collateral
Agent.
Dear ____________:
As a Bank party to the above-referenced Second 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
Loans (as defined in the Credit Agreement)][assignee Bank], with
Confidentiality Agreement
_________________________
</PAGE>
<PAGE>
- 2 -
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
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 _________________________
Confidentiality Agreement
_________________________
</PAGE>
<PAGE>
EXECUTION COUNTERPART
=====================================================================
HEMISPHERE BROADCASTING CORPORATION
AMENDED AND RESTATED LOAN AGREEMENT
Dated as of December 22, 1994
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
================================================================
</page>
<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 . . . . . . . . . . . . . . . . . . . 1
1.01 Certain Defined Terms. . . . . . . . . . . . . . . . . . . . 1
1.02 Types of Loans . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.01 Conversion of Loans. . . . . . . . . . . . . . . . . . . . . 8
2.02 Lending Offices. . . . . . . . . . . . . . . . . . . . . . . 8
2.03 Remedies Independent . . . . . . . . . . . . . . . . . . . . 9
2.04 Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.05 Conversions or Continuations of Loans. . . . . . . . . . . . 9
Section 3. Payments of Principal and Interest . . . . . . . . . . . . . 9
3.01 Repayment of Loans . . . . . . . . . . . . . . . . . . . . . 9
3.02 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.03 Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4. Payments; Pro Rata Treatment; Computations;
Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.02 Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . 12
4.03 Computations . . . . . . . . . . . . . . . . . . . . . . . . 13
4.04 Non-Receipt of Funds by the Administrative
Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Yield Protection, Etc. . . . . . . . . . . . . . . . . . . . 13
5.01 Additional Costs . . . . . . . . . . . . . . . . . . . . . . 13
5.02 Limitation on Eurodollar Loans . . . . . . . . . . . . . . . 16
5.03 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.04 Treatment of Affected Loans. . . . . . . . . . . . . . . . . 17
5.05 Compensation . . . . . . . . . . . . . . . . . . . . . . . . 17
5.06 U.S. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.07 Replacement or Prepayment of Certain Banks . . . . . . . . . 21
Section 6. Conditions Precedent . . . . . . . . . . . . . . . . . . . . 21
6.01 Effectiveness of Amendment and Restatement . . . . . . . . . 21
Section 7. Representations and Warranties . . . . . . . . . . . . . . . 23
7.01 Corporate Existence. . . . . . . . . . . . . . . . . . . . . 23
7.02 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.03 No Breach. . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.04 Action . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.05 Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.06 Use of Loans . . . . . . . . . . . . . . . . . . . . . . . . 24
(i)
</page>
<PAGE>
Section 8. Covenants of the Borrower. . . . . . . . . . . . . . . . . . 24
8.01 Financial Information. . . . . . . . . . . . . . . . . . . . 25
8.02 Existence, Etc.. . . . . . . . . . . . . . . . . . . . . . . 25
8.03 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . 25
Section 9. Events of Default. . . . . . . . . . . . . . . . . . . . . . 25
Section 10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 27
10.01 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.03 Expenses, Etc.. . . . . . . . . . . . . . . . . . . . . . . 28
10.04 Successors and Assigns. . . . . . . . . . . . . . . . . . . 28
10.05 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . 29
10.06 Captions. . . . . . . . . . . . . . . . . . . . . . . . . . 29
10.07 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 29
10.08 Governing Law; Submission to Jurisdiction . . . . . . . . . 29
10.09 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . 29
10.10 Appointment of Infinity as Agent. . . . . . . . . . . . . . 30
(ii)
</page>
<PAGE>
SCHEDULE I - Banks and Loans
SCHEDULE II - Litigation
EXHIBIT A - Form of Note
EXHIBIT B-1 - Form of Opinion of Counsel to the Borrower
EXHIBIT B-2 - Form of Opinion of FCC Counsel to the Borrower
(iii)
</page>
<PAGE>
AMENDED AND RESTATED LOAN AGREEMENT dated as of
December 22, 1994 between: HEMISPHERE BROADCASTING CORPORATION,
a corporation duly organized and validly existing under the laws
of the State of Delaware (together with its successors and
assigns, the "Borrower"); and THE CHASE MANHATTAN BANK (NATIONAL
________
ASSOCIATION), a national banking association, as Administrative
Agent under the Infinity Credit Agreement referred to below for
each of the lenders identified under the caption "BANKS" on
Schedule I hereto or which hereafter shall hold loans to the
Borrower hereunder (individually, a "Bank" and, collectively, the
____
"Banks") (in such capacity, together with its successors in such
_____
capacity, the "Administrative Agent").
____________________
The Borrower and the Administrative Agent are parties
to a Loan Agreement dated as of June 7, 1994 (such Loan
Agreement, as modified and supplemented and as in effect
immediately prior to the Effective Date referred to below, the
"Existing Loan Agreement") governing loans (the "Existing Loans")
_______________________ ______________
held by the Banks to the Borrower.
The Borrower wishes to amend and restate the Existing
Loan Agreement. Accordingly, the Borrower has requested and the
Banks and the Administrative Agent have agreed, effective as of
the Effective Date (as such term is defined below), that the
Existing Loan 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 Loan Agreement reads in its entirety as provided in this
Amended and Restated Loan Agreement (provided that (i) if the
________
Effective Date does not occur on or prior to December 31, 1994,
this Agreement shall terminate and be of no further force and
effect and the Existing Loan Agreement shall not be so amended
and restated, and (ii) the obligations of the Borrower referred
to in Section 10.03 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.
____________________________
1.01 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):
____ _____
"Agreement" shall mean this Amended and Restated Loan
_________
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 Loan Agreement
as a whole and not to any particular provision of this Amended
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 2 -
and Restated Loan 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 Loan Agreement (and not to the date of the Existing
Loan Agreement).
"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 have the meaning assigned
_________________
thereto in the Infinity Credit Agreement as in effect from time
to time.
"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 1/2 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.
"Business Day" shall mean (a) any day on which
____________
commercial banks are not authorized or required to close in New
York City and (b) if such day relates to a payment or prepayment
of principal of or interest on, or an Interest Period for, a
Eurodollar Loan or a notice by the Borrower with respect to any
such borrowing, payment, prepayment or Interest Period, or to a
Continuation of or a Conversion of or into a Eurodollar Loan or a
notice by the Borrower with respect to any such Continuation or
Conversion, such day shall also be a day on which dealings in
Dollar deposits are carried out in the London interbank market.
"Chase" shall mean The Chase Manhattan Bank (National
_____
Association).
"Closing Date" shall mean the date on which the
____________
Administrative Agent gives notice (such notice to be effective
upon dispatch) to the Borrower and the Banks that all of the
conditions precedent to the effectiveness of this Agreement set
forth in Section 6 hereof shall have been satisfied or waived by
such of the Banks as are required for such purpose.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 3 -
"Code" shall mean the Internal Revenue Code of 1986, as
____
amended from time to time.
"Continue", "Continuation" and "Continued" shall refer
________ ____________ _________
to the continuation pursuant to Section 2.05 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 2.05 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
sole discretion) of a Loan from one Applicable Lending Office to
another.
"Credit Documents" shall mean, collectively, this
________________
Agreement and the Notes.
"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.
"Dollars" and "$" shall mean lawful money of the United
_______ _
States of America.
"Effective Date" shall have the meaning assigned
______________
thereto in the Infinity Credit Agreement.
"Eurodollar Base Rate" shall mean, with respect to any
____________________
Eurodollar Loan or any LIBOR Market 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. If
any Reference Bank does not timely furnish such information for
determination of any Eurodollar Rate, the Administrative Agent
shall determine such rate on the basis of the information timely
furnished by the remaining Reference Banks.
"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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 4 -
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.
"FCC" shall mean the Federal Communications Commission
___
or any successor thereto.
"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.
"Infinity" shall mean Infinity Broadcasting
________
Corporation, a Delaware corporation that owns, directly or
indirectly, all of the issued and outstanding capital stock of
the Borrower.
"Infinity Credit Agreement" shall mean the Second
_________________________
Amended and Restated Credit Agreement dated as of December 22,
1994 between Infinity, the lenders party thereto, Chase, as
Administrative Agent, Bank of America Illinois, The Bank of
Montreal, The Bank of New York, Chemical Bank, Compagnie
Financiere de CIC et de l'Union Europeenne, The First National
Bank of Boston and National Westminster Bank USA, as Co-Agents,
and Chemical Bank, as Collateral Agent, as the same shall be
modified and supplemented and in effect from time to time.
"Interest Accrual Date" shall mean (i) with respect to
_____________________
any Loan outstanding on the Effective Date that was converted
from an Existing Loan to a Loan pursuant to Section 2.01 hereof,
the day immediately following the last day through which interest
has been paid on such Loan under the Existing Loan Agreement;
provided that if on the Effective Date or the effective date of
________
any such assignment there shall be outstanding or assigned both
Base Rate Loans and Eurodollar Loans and/or Eurodollar Loans
having different Interest Periods, the "Interest Accrual Date"
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 5 -
with respect to all such Loans then outstanding or so assigned,
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 Class, with the
approval of all of the Banks) twelfth calendar month thereafter,
as the Borrower may select as provided in Section 4.05 of the
Infinity Credit Agreement, except that each Interest Period which
commences on the last Business Day of a 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 may commence before and end after any Principal Payment Date
unless, after giving effect thereto, the aggregate principal
amount of the Loans having Interest Periods which end after such
Principal Payment Date shall be equal to or less than the
aggregate principal amount of the Loans 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.
"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 have the meaning assigned thereto in
_____
Section 2.01 hereof.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 6 -
"Majority Banks" shall have the meaning assigned
______________
thereto in the Credit Agreement.
"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 Infinity and its
Subsidiaries taken as a whole, (b) the ability of the Borrower to
perform its obligations under the Credit Documents, (c) the
validity or enforceability of any of the Credit Documents, (d)
the rights and remedies of any of the Banks and the
Administrative Agent under any of the Credit Documents or (e) the
timely payment of the principal of or interest on the Loans or
other amounts payable in connection therewith.
"Notes" shall mean the promissory notes provided for by
_____
Section 2.04 hereof.
"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).
"Post-Default Rate" shall mean, in respect of any
_________________
principal of or interest on any Loan or any other amount payable
by the Borrower under this Agreement or any Note that is not paid
when due (whether at stated maturity, by acceleration, by
optional or mandatory prepayment or otherwise), a rate per annum
during the period from and including the due date therefor to but
excluding the date such amount is paid in full equal to the
lesser of (a) 2% plus the Base Rate as in effect from time to
____
time plus the Applicable Margin for Base Rate Loans (provided
____ _________
that, if the amount so in default 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, 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.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 7 -
"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 each Quarterly Date
______________________
on which a principal payment in respect of the Loans is required
to be made pursuant to Section 3.01 hereof.
"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.
"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.
"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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 8 -
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.
"Senior Officer" shall mean the President or the Vice
______________
President-Finance of the Borrower.
"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.
"Type" shall have the meaning assigned to such term in
____
Section 1.02 hereof.
1.02 Types of Loans. Loans hereunder are
______________
distinguished by "Type". The "Type" of a Loan refers to whether
such Loan is a Base Rate Loan or a Eurodollar Loan, each of which
constitutes a Type.
Section 2. Loans.
_____
2.01 Conversion of Loans. As of the Closing Date, all
___________________
of the Loans under and as defined in the Existing Loan Agreement
outstanding immediately prior to the Effective Date and
outstanding immediately prior to the Closing Date shall
constitute "Loans" hereunder (such Loans being herein
collectively called "Loans"). Subject to the terms and
_____
conditions of this Agreement, the Borrower may (as provided in
Section 2.05 hereof) Convert Loans of one Type into Loans of the
other Type or Continue Loans of one Type as Loans of the same
Type.
2.02 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.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 9 -
2.03 Remedies Independent. The amounts payable by the
____________________
Borrower at any time hereunder and under the Notes shall be a
separate and independent debt and each Bank shall be entitled to
protect and enforce its rights arising out of this Agreement and
the Notes, and it shall not be necessary for any other Bank or
the Administrative Agent to consent to, or be joined as an
additional party in, any proceedings for such purposes.
2.04 Notes. The Loans held by each Bank shall be
_____
evidenced by a single promissory note (each, a "Note") of the
Borrower in substantially the form of Exhibit A hereto, dated the
Interest Accrual Date, payable to the order of such Bank in a
principal amount equal to the amount set forth opposite such
Bank's name on Schedule I hereto and otherwise duly completed.
2.05 Conversions or Continuations of Loans. Subject
_____________________________________
to Sections 2,09. 2.10 and 4.04 of the Infinity Credit Agreement,
the Borrower shall have the right to Convert Loans of one Type
into Loans of the other Type or Continue Loans of one Type as
Loans of the same Type, at any time or from time to time.
Section 3. Payments of Principal and Interest.
__________________________________
3.01 Repayment of Loans. The Borrower hereby promises
__________________
to pay to the Administrative Agent for account of each Bank the
principal of the Loans held by such Bank that are outstanding on
June 30, 1998 in 20 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 principal amount of the Loans
outstanding at the close of business on June 30, 1998 held by
such Bank times (ii) the percentage set forth below opposite the
_____
related Principal Payment Date):
Principal Payment Date
Occurring In: Percentage
_____________ __________
September 1998 6.250%
December 1998 6.250%
March 1999 3.750%
June 1999 3.750%
September 1999 3.750%
December 1999 3.750%
March 2000 4.375%
June 2000 4.375%
September 2000 4.375%
December 2000 4.375%
March 2001 5.000%
June 2001 5.000%
September 2001 5.000%
December 2001 5.000%
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 10 -
March 2002 5.000%
June 2002 5.000%
September 2002 5.000%
December 2002 5.000%
March 2003 7.500%
June 2003 7.500%
3.02 Interest.
________
(a) The Borrower 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
Borrower 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 Borrower
hereunder or under the Notes held by such Bank to or for account
of such Bank 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.
(c) Accrued interest on each Loan 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, (iii) in the case of any Loan,
upon the payment or prepayment thereof (but only on the principal
amount so paid or prepaid), and (iv) upon the Conversion of such
Loan to a Loan of the other Type (but only on the principal
amount so 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 interest rate provided
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 11 -
for herein or any change therein, the Administrative Agent shall
give notice thereof to the Banks and to the Borrower.
(d) Anything in this Agreement to the contrary
notwithstanding, with respect to each of the Loans made under the
Existing Loan Agreement prior to the Closing Date and outstanding
on the Closing Date as Eurodollar Loans: (i) the Interest Period
in effect for such Loan under the Existing Loan Agreement on the
Closing 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 Loan 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 Loan
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 Loan Agreement and, during that portion of such
Interest Period commencing on the Closing Date, the Applicable
Margin for such Loan provided for in Section 1.01 of this
Agreement.
3.03 Prepayments. Subject to Sections 3.03 and 4.04
___________
of the Infinity Credit Agreement, the Borrower shall have the
right to prepay Loans hereunder at any time or from time to time,
provided that nothing in this Section 3.03 shall relieve the
________
Borrower from its obligations under Section 5 hereof.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
________________________________________________
4.01 Payments.
________
(a) Except to the extent otherwise provided herein or
therein, all payments of principal, interest and other amounts to
be made by the Borrower under this Agreement and the Notes, 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 Borrower
with it (with notice to the Borrower and Infinity).
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 12 -
(c) The Borrower shall, at the time it makes any
payment under this Agreement or any of its Notes, notify the
Administrative Agent (which shall so notify the intended
recipient(s) thereof) of the Loans or other amounts payable by
the Borrower hereunder to which such payment is to be applied in
which case such payment shall be so applied, subject to
Section 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 Section 4.02).
(d) Each payment received by the Administrative Agent
under this 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 Borrower hereunder shall be
made without deduction, set-off or counterclaim.
(f) If the due date of any payment under this
Agreement or any Note of the Borrower 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.
4.02 Pro Rata Treatment. Except to the extent
__________________
otherwise provided herein or in Section 4.02 of the Infinity
Credit Agreement:
(a) the Conversion and Continuation of Loans of a
particular type (other than Conversions provided for by
Section 5.04 hereof) shall be made pro rata among the Banks
holding Loans of such type according to the respective
principal amounts of their Loans, and Eurodollar Loans of a
particular type having the same Interest Period shall be
allocated pro rata among the Banks according to the amounts
of their respective Loans of such type;
(b) each payment or prepayment of principal of Loans
of a particular type shall be made to the Administrative
Agent for account of the Banks holding Loans of such type
pro rata in accordance with the respective unpaid principal
amounts of the Loans of such type held by such Banks; and
(c) each payment of interest on Loans of a particular
type shall be made to the Administrative Agent for account
of the Banks holding Loans of such type pro rata in
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 13 -
accordance with the amounts of interest on Loans of such
type then due and payable to such Banks.
4.03 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 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
shall be computed on the basis of a year of 360 days and actual
days elapsed.
4.04 Non-Receipt of Funds by the Administrative Agent.
________________________________________________
Unless the Administrative Agent shall have been notified by a
Bank or the 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 Borrower) a payment to the Administrative
Agent for account of one or more of the Banks hereunder (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 Borrower, 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.
Section 5. Yield Protection, Etc.
_____________________
5.01 Additional Costs.
________________
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 14 -
(a) The Borrower 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 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 of such extensions of credit
or liabilities).
If any Bank requests compensation from the Borrower under this
Section 5.01(a), the Borrower 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).
(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 Borrower
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 15 -
(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
Borrower 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
____________
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 Borrower 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 16 -
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 Borrower for such compensation.
Each Bank will furnish to the Borrower 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.
5.02 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, 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; then the Administrative Agent shall
give the Borrower 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 Borrower 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 2.05
hereof.
5.03 Illegality. Notwithstanding any other provision
__________
of this Agreement, 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 Borrower thereof (with a copy to the Administrative
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 17 -
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).
5.04 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
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 Borrower 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 Borrower 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.
5.05 Compensation. The Borrower 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 18 -
Bank) to compensate it for any loss, cost or expense which such
Bank determines is attributable to 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. 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 Borrower 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.
5.06 U.S. Taxes.
__________
(a) From time to time after the date hereof if
requested by the Borrower 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
Administrative Agent and the Borrower 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 and under the Notes. If such Bank
has transferred a beneficial interest in any part of the Notes
payable to it, it will forward to the Borrower or the
Administrative Agent any such statements or forms executed by the
Person to which it has transferred such beneficial interest.
(b) The Borrower and the Administrative Agent shall be
entitled to deduct and withhold any and all present or future
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 19 -
taxes or withholdings, and all liabilities with respect thereto,
from payments hereunder or under the Notes, if and to the extent
that the Borrower 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
Borrower 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
Borrower or the Administrative Agent shall so deduct or withhold
taxes from amounts payable hereunder, 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 Borrower and the Administrative Agent shall have
received forms or other documents satisfactory to them indicating
that payments hereunder or under any Note or not subject to
United States withholding tax or are subject to such tax at a
rate reduced by an applicable tax treaty, the Borrower or the
Administrative Agent may withhold taxes from such payments at the
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
Borrower 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); and
(ii) to indemnify the Borrower and the Administrative Agent and
any officers, directors, agents or employees of the Borrower 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).
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
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(d) Each assignee of a Bank's interest in this
Agreement 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 Borrower shall have consented in writing to such assignment,
no assignee of a Bank's interest in this 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 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 Borrower
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
Borrower shall make such deductions and (iii) the Borrower 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. 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 Borrower 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 Borrower 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 Borrower 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 21 -
subject to withholding taxes. In the event the credit is later
disallowed, deferred or recaptured for any reason, the Borrower
will pay the Bank such amount as will equal the amount of the
credit so disallowed, deferred or recaptured, provided that the
Borrower 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 Borrower
by such Bank in respect of such credit. In any such case, the
applicable Bank shall provide to the Borrower a statement in
reasonable detail setting forth the determination of such credit
utilized by such Bank.
5.07 Replacement or Prepayment of Certain Banks. The
__________________________________________
Borrower 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 below require that such Bank assign
(in which case such Bank shall assign) as provided in Section
11.06(a) of the Infinity Credit Agreement all (but not less than
all) of its Loans to one or more other financial institutions
(which may be "Banks" hereunder) specified by the Borrower 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 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 Borrower 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 Borrower would be required to pay such
Bank if the Loans assigned by it were being prepaid by the
Borrower on the date of such consummation) and (y) all other
amounts then owing by the Borrower to or for the account of such
Bank hereunder (other than such principal of its Loans and such
interest).
Section 6. Conditions Precedent.
____________________
6.01 Effectiveness of Amendment and Restatement. The
__________________________________________
effectiveness of the amendment and restatement of this Agreement
and the conversion of the Existing Loans to Loans hereunder shall
be subject to the receipt by the Administrative Agent of the
following, each of which shall be satisfactory to the
Administrative Agent in form and substance:
(a) Corporate Documents. A certificate from the
___________________
Secretary of State of the state in which the Borrower is
organized or has its principal place of business dated as of
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 22 -
a recent date as to the good standing (or its equivalent) of
and, with respect to the Borrower's state of organization,
the charter documents filed by the Borrower and copies,
certified by a Secretary or an Assistant Secretary of the
Borrower, of the charter and by-laws (or equivalent
documents) of the Borrower and of all corporate authority
for the Borrower (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 Credit Documents and each other
document to be delivered by the Borrower from time to time
in connection herewith and the Loans hereunder (and the
Administrative Agent and each Bank may conclusively rely on
such certificate until it receives notice in writing from
such Obligor to the contrary).
(b) Officer's Certificate. A certificate of a Senior
_____________________
Officer of the Borrower dated the Closing Date to the effect
that after giving effect to the borrowing hereunder and to
the proposed use of the Loans (i) no Default shall have
occurred and be continuing; and (ii) the representations and
warranties made by the Borrower in Section 7 hereof shall be
true in all material respects on and as of the date of such
certificate 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).
(c) Opinion of Counsel to the Borrower and FCC Counsel
__________________________________________________
to the Borrower. An opinion of counsel (reasonably
_______________
acceptable to the Administrative Agent) to the Borrower,
dated the Closing Date, substantially in the form of
Exhibit B-1 hereto and an opinion of FCC counsel (reasonably
acceptable to the Administrative Agent) to the Borrower,
dated the Closing Date, substantially in the form of Exhibit
B-2 hereto (and the Borrower hereby instructs each such
counsel to deliver its opinion to the Banks and the
Administrative Agent).
(d) Notes. The Notes, duly completed and executed and
_____
delivered.
(e) 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 Credit Documents and the other transactions
contemplated hereby have been obtained and are in full force
and effect.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 23 -
(f) Fees and Expenses. Evidence that all amounts
_________________
payable by the Borrower on or prior to the date hereof in
connection with this Agreement, including without
limitation, under Section 10.03 hereof have been paid in
full (in the case of amounts payable under said Section
10.03, to the extent that invoices therefor have been
delivered to the Borrower).
(g) Other Documents. Such other documents as the
_______________
Administrative Agent or special New York counsel to Chase
may reasonably request.
Section 7. Representations and Warranties. The
______________________________
Borrower represents and warrants to the Banks and the
Administrative Agent that:
7.01 Corporate Existence. Each of the Borrower and
___________________
its 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.
7.02 Litigation. Except as set forth in Schedule II
__________
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 Borrower)
threatened against the Borrower or any of its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect.
7.03 No Breach. None of the execution and delivery of
_________
this Agreement and the Notes, 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 the Borrower, 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
Borrower or any of its 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 24 -
Adverse Effect or result in the creation or imposition of any
Lien upon any Property of the Borrower or any of its Subsidiaries
pursuant to the terms of any such agreement or instrument.
7.04 Action. The Borrower has all necessary corporate
______
power and authority to execute, deliver and perform its
obligations under each of the Credit Documents; the execution,
delivery and performance by the Borrower of each of the Credit
Documents have been duly authorized by all necessary corporate
action on its part; and each of this Agreement and the Notes has
been duly and validly executed and delivered by the Borrower and
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
enforceability is considered in a proceeding in equity or at
law).
7.05 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 the Borrower of this Agreement or the Notes, for
the consummation of the transactions contemplated hereby or
thereby, or for the validity or enforceability thereof, except
for (a) 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, and (b) authorizations, approvals, consents,
filings or registrations (other than any of the foregoing to be
obtained from the FCC) which, if not made or obtained, could not
reasonably be expected to have a Material Adverse Effect.
7.06 Use of Loans. Neither the Borrower 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 will be used to buy or carry any
Margin Stock.
Section 8. Covenants of the Borrower. The Borrower
_________________________
covenants and agrees with the Banks and the Administrative Agent
that, so long as any Loan is outstanding and until payment in
full of all amounts payable by the Borrower hereunder:
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 25 -
8.01 Financial Information. The Borrower will deliver
_____________________
to each of the Banks promptly, from time to time, such
information regarding (a) the business, affairs, operations or
conditions (financial or otherwise) of the Borrower or any of its
Subsidiaries, (b) compliance by the Borrower with its obligations
contained herein and (c) the transactions contemplated hereby, in
each case as any Bank or the Administrative Agent may reasonably
request.
8.02 Existence, Etc. The Borrower will, and will
_______________
cause each of its Subsidiaries to: (a) preserve and maintain its
legal existence and all of its material rights, privileges and
franchises; (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).
8.03 Use of Proceeds. The Borrower will use the
________________
proceeds of the Loans solely for financing acquisitions of radio
stations (including net working capital of radio stations so
acquired) by the Borrower and/or any of its Restricted
Subsidiaries (in compliance with all applicable legal and
regulatory requirements).
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 Borrower shall default in the payment or
prepayment when due of any principal of or interest on any
Loan hereunder; or the Borrower 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 26 -
(b) Any representation, warranty or certification made
or deemed made in any Credit Document (or in any
modification or supplement thereto) by the Borrower, or any
certificate furnished to any Bank or any of the
Administrative Agent 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
(c) The Borrower or any of its Subsidiaries or
Infinity shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due;
or
(d) The Borrower or any of its Subsidiaries or
Infinity 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 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
(e) A proceeding or case shall be commenced, without
the application or consent of the Borrower or any of its
Subsidiaries or Infinity, 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
Borrower or such Subsidiary or Infinity or of all or any
substantial part of its assets, or (iii) similar relief in
respect of the Borrower or such Subsidiary or Infinity 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 Borrower or such Subsidiary or Infinity
shall be entered in an involuntary case under the Bankruptcy
Code; or
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 27 -
(f) Any other "Event of Default" under and as defined
in the Infinity Credit Agreement shall have occurred and be
continuing;
THEREUPON: (i) in the case of an Event of Default other than an
Event of Default with respect to the Borrower or Infinity
referred to in clause (d) or (e) of this Section 9 the
Administrative Agent may and, upon request of the Majority Banks,
shall, by notice to the Company, declare the principal amount
then outstanding of, and the accrued interest on, the Loans and
all other amounts owing by the Borrower to the Administrative
Agent and the Banks under this Agreement 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 Borrower and (ii) in the case of the
occurrence of an Event of Default with respect to the Borrower or
Infinity referred to in clause (d) or (e) of this Section 9, the
principal amount then outstanding of, and the accrued interest
on, the Loans and all other amounts payable by the Borrower under
this Agreement 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 Borrower.
Section 10. Miscellaneous.
______________
10.01 Waiver. No failure on the part of the
______
Administrative 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.
10.02 Notices. All notices and other communications
_______
provided for herein (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, in the case of the Banks, at the "Address for
Notices" specified below its name on the signature pages of the
Infinity Credit Agreement; or, as to any party or any Bank, at
such other address as shall be designated by such party or Bank
in a notice to each other party and Bank. Except as otherwise
provided in this Agreement, all such communications shall be
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 28 -
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.
10.03 Expenses, Etc. The Borrower agrees to pay or
______________
reimburse each of the Banks and the Administrative Agent for
paying: (a) all reasonable out-of-pocket costs and expenses of
the Administrative Agent (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 Credit Documents and the making of Loans
hereunder and (ii) any amendment, modification or waiver of any
of the terms of this Agreement or any of the other Credit
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 10.03); 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 Credit 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 Credit
Document or any other document referred to herein or therein.
The Borrower hereby agrees (to the fullest extent
permitted by law) to indemnify the Administrative 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 the Administrative 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 Loans or
any actual or proposed use by the Borrower 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).
10.04 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
________
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 29 -
the Borrower may not assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of
the Banks and the Administrative Agent. No Bank may assign any
of its rights or obligations hereunder or with respect to any of
the Loans other than in accordance with Section 11.06 of the
Infinity Credit Agreement.
10.05 Survival. The obligations of the Borrower under
________
Sections 5.01, 5.05, 5.06 and 10.03 hereof shall survive the
repayment of the Loans. In addition, each representation and
warranty made, or deemed to be made 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
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.
10.06 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.
10.07 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.
10.08 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 Borrower
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
Borrower 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.
10.09 Waiver of Jury Trial. EACH OF THE BORROWER AND
____________________
THE ADMINISTRATIVE AGENT 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.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 30 -
10.10 Appointment of Infinity as Agent. The Borrower
________________________________
hereby irrevocably appoints Infinity as its agent for the purpose
of giving and receiving any and all notices and other
communications provided for herein and for all other purposes
hereunder and under the Notes. By its signature below, Infinity
hereby accepts such appointment.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 31 -
IN WITNESS WHEREOF, the parties hereto have caused this
Amended and Restated Loan Agreement to be duly executed as of the
day and year first above written.
HEMISPHERE BROADCASTING CORPORATION
By ________________________________
Name: Farid Suleman
Title: Vice President - Finance
Address for Notices:
Hemisphere Broadcasting Corporation
c/o Infinity Broadcasting Corporation
600 Madison Avenue
New York, New York 10022
Attention: Mel Karmazin
Telecopier No.: (212) 888-2959
Telephone No.: (212) 750-6400
APPOINTMENT AS AGENT
IS HEREBY ACCEPTED:
INFINITY BROADCASTING CORPORATION
By _______________________________
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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 32 -
ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
By ______________________________
Name:
Title:
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
with a copy to:
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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
SCHEDULE I
Banks and Loans
Name of Bank Amount of Loan
____________ ______________
Chase Manhattan $ 2,346,428.57
Bank of America $ 1,955,357.14
Bank of Boston $ 1,955,357.14
Bank of Montreal $ 1,955,357.14
Chemical Bank $ 1,955,357.14
CIC-Union $ 1,955,357.14
National Westminster Bank $ 1,071,428.57
The Bank of New York $ 1,955,357.14
Bank of Nova Scotia $ 1,877,142.86
Banque Paribas $ 1,877,142.86
NationsBank $ 1,877,142.86
Society National Bank $ 1,028,571.43
Union Bank $ 1,877,142.86
ABN AMRO Bank $ 1,642,500.00
Corestates $ 1,642,500.00
First Union National Bank $ 900,000.00
Fuji Bank, Limited $ 1,642,500.00
Midland Bank plc $ 900,000.00
Mitsubishi Trust $ 1,642,500.00
Nippon Credit Bank $ 900,000.00
Shawmut Bank $ 1,642,500.00
Societe Generale $ 1,564,285.71
Sumitomo Trust $ 1,564,285.71
The Bank of California, N.A. $ 857,142.86
BNP $ 857,142.86
Dai-Ichi Kangyo Bank, Ltd. $ 1,173,214.29
Daiwa Bank $ 1,173,214.29
NBD Bank, N.A. $ 642,857.14
PNC Bank $ 1,173,214.29
Royal Bank of Scotland $ 1,173,214.29
The Long Term Credit Bank $ 1,173,214.29
The Sumitomo Bank, Ltd. $ 1,173,214.29
National Bank of Canada $ 938,571.43
Bank of Ireland $ 782,142.86
______________
TOTAL $54,750,000.00
==============
Schedule I to Subsidiary Loan Agreement
_______________________________________
</page>
<PAGE>
SCHEDULE II
Litigation
1. On November 20, 1990, the FCC issued a Notice of
_________
Apparent Liability for Monetary Forfeiture ("NAL") with respect
__________________________________________
to the broadcast by stations WXRK(FM), WYSP(FM), and WJFK-FM of
certain allegedly indecent material contained within "The Howard
Stern Show." On October 23, 1992, the FCC's Staff issued a
Memorandum Opinion and Order in which it determined that each of
____________________________
the three stations was liable for a forfeiture in the amount of
$2,000 per station. Two Petitions for Reconsideration filed by
the Company were subsequently denied by the FCC, and the FCC's
action became administratively final in October, 1993. In
December, 1993, the Company notified the FCC that it did not
intend to remit the forfeiture and instead wished to avail itself
of United States District Court de novo review, which must, by
__ ____
statute, be initiated by the government in the form of a
collection action. The government has taken no further action in
the matter.
2. On December 18, 1992, the FCC issued an NAL
advising the Company that it may be liable for a $600,000
monetary forfeiture for the broadcast by WXRK(FM), WYSP(FM), and
WJFK-FM of allegedly indecent material in several segments of
"The Howard Stern Show." The NAL stated that additional
enforcement action would result if additional violations of the
indecency regulations have occurred or should occur, and that
further action could include additional monetary forfeitures,
renewal of licenses for short (i.e., less than seven years) terms
____
or initiation of proceedings directed to the Company's
qualifications to remain an FCC licensee. On February 23, 1993,
the Company filed a Response with the FCC, vigorously asserting
that the cited material is not indecent and raising other
defenses. The matter is currently pending before the FCC.
3. On August 12, 1993, the FCC issued an NAL in the
amount of $500,000 against stations WJFK(AM) and WJFK-FM,
WXRK(FM), and WYSP(FM) relating to the broadcast of allegedly
indecent material within "The Howard Stern Show" on certain dates
in November and December, 1992 and January, 1993. The NAL stated
that if additional violations of FCC's indecency regulations
should occur, further enforcement action could include
proceedings focusing upon the Company's qualifications to be an
FCC licensee. On October 15, 1993, the Company filed a Response
which vigorously contested the allegations made in the NAL. The
matter is pending before the FCC.
4. On February 1, 1994, the FCC released an NAL in the
amount of $400,000 against stations WXRK(FM), WYSP(FM) and
WJFK(AM & FM) relating to the broadcast of allegedly indecent
material within "The Howard Stern Show" on four dates in August,
September and October, 1993. The Company's response was filed on
Schedule II to Subsidiary Loan Agreement
_______________________________________
</page>
<PAGE>
April 4, 1994, and vigorously contested the allegations of the
NAL. The matter is pending before the FCC.
5. On May 20, 1994, the FCC released an NAL in the
amount of $200,000 against Stations WXRK(FM), WJFK(AM & FM) and
WYSP(FM) relating to the broadcast of allegedly indecent material
within "The Howard Stern Show" on two dates, one in December,
1993 and one in January, 1994. The Company's response to the NAL
was filed on July 18, 1994, and vigorously contested the
allegations of the NAL. The matter is pending before the FCC.
6. On August 11, 1992, Hemisphere Broadcasting
Corporation, a subsidiary of the Company and licensee of Station
WBCN, received an inquiry letter from the FCC with respect to a
complaint alleging that the Station had broadcast an indecent
joke on its morning drive time program. On October 1, 1992, the
Company responded to the FCC's inquiry letter, contesting the
allegations contained therein. The matter is currently pending
at the FCC.
7. On August 5, 1993, an organization known as
Americans for Responsible Television ("ART") filed a pleading
styled as a Formal Petition to Deny against the Company's
application for consent to assignment of the KRTH, Los Angeles,
license. The Company filed an Opposition to the Petition on
August 16, 1993, and ART filed a Reply on August 23, 1993. On
approximately October 21, 1993, Mr. Al Westcott filed a late-
filed Petition to Deny the KRTH assignment application. On
February 1, 1994, the FCC granted the KRTH application and denied
both Petitions, and the Company closed the KRTH acquisition on
February 15, 1994. On March 3, 1994, ART filed a Petition for
Reconsideration of the FCC's grant, and on April 13, 1994, the
Company filed an Opposition thereto. The FCC has not yet acted
on these filings. Accordingly, the FCC's grant of the KRTH has
not become a Final Order, and the application remains pending
under the FCC's rules.
8. On November 3, 1994, ART filed a Petition to Deny
against the Company's application for FCC consent to the
assignment of the KLUV-FM, Dallas, Texas license. The arguments
advanced by ART were similar to those set forth in its Petition
against the KRTH assignment. ART cites two complaints relating
to allegedly indecent broadcasts not previously considered by the
FCC, one filed in March, 1994 relating to broadcasts on two
occasions on the Company's Station WBCN in February and March,
1994, and another relating to a September, 1994 broadcast on
Station WRNO in New Orleans, a station not licensed to the
Company, which carries the Howard Stern Show. On November 17,
1994, the Company filed an Opposition to the Petition which
vigorously contested the allegations set forth in the Petition,
and ART filed a Reply on November 23, 1994. The matter is
currently pending at the FCC.
Schedule II to Subsidiary Loan Agreement
_______________________________________
</page>
<PAGE>
EXHIBIT A
[Form of Note]
PROMISSORY NOTE
$_______________ _________ __, 19__
New York, New York
FOR VALUE RECEIVED, HEMISPHERE BROADCASTING CORPORATION, a
Delaware corporation (the "Borrower"), 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 Borrower 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
the Borrower, 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 Amended and
Restated Loan Agreement dated as of December 22, 1994 (as
amended, modified and supplemented and in effect from time to
time, the "Loan Agreement") between the Borrower 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.
Note
_____
</page>
<PAGE>
- 2 -
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
HEMISPHERE BROADCASTING CORPORATION
By _________________________
Name:
Title:
Note
_____
</page>
<PAGE>
- 3 -
SCHEDULE OF LOANS
This Note evidences Loans assumed, made, Continued or
Converted as contemplated by or under the within-described Loan
Agreement to the Borrower, 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
_________ ______ ____ ________ ________ _________ _______ ________
Note
_____
</page>
<PAGE>
EXHIBIT B-1
[Form of Opinion of Counsel to the Borrower]
Opinion of Counsel to the Borrower
__________________________________
</page>
<PAGE>
EXHIBIT B-2
[Form of Opinion of FCC Counsel to the Borrower]
Opinion of Counsel to the Borrower
__________________________________
</page>
<PAGE>
- 2 -
Opinion of Counsel to the Borrower
__________________________________
</page>
<PAGE>
EXHIBIT B-1
[Form of Opinion of Counsel to the Borrower]
_____________, 199_
To The Chase Manhattan Bank (National Association),
as Administrative Agent, and the Banks party
to the [Amended and Restated] Loan Agreement
referred to below
Ladies and Gentlemen:
We have acted as counsel to _____________ (the
"Borrower") in connection with the [Amended and Restated] Loan
Agreement dated as of _________, 199_ (the "Subsidiary Loan
Agreement") between the Borrower and The Chase Manhattan Bank
(National Association), as administrative agent for the lenders
identified on Schedule I thereto (the "Administrative Agent").
____________________
This opinion is being delivered to you pursuant to Section
6.01(c) of the Subsidiary Loan Agreement. Capitalized terms not
otherwise defined herein are used with the meanings given them in
the Second Amended and Restated Credit Agreement, dated as of
December 22, 1994, between Infinity Broadcasting Corporation
("Infinity"), each of the lenders identified under the caption
________
"BANKS" on the signature pages thereof (the "Banks"), the
_____
Administrative Agent, Bank of America Illinois, Bank of Montreal,
The Bank of New York, Chemical Bank, Compagnie Financiere de CIC
et de l'Union Europeenne, The First National Bank of Boston and
National Westminster Bank USA, as Co-Agents for the Banks, and
Chemical Bank, as Collateral Agent for the Banks.
In so acting, we have participated in the preparation
of the Subsidiary Loan Agreement and the Credit Documents. We
have also examined and relied upon the representations and
warranties as to factual matters contained in or made pursuant to
the Credit Documents and certificates of officers of the Borrower
and examined and relied upon the originals, or copies certified
or otherwise identified to our satisfaction, of such records,
documents, certificates and other instruments, and have made such
other investigations, as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below.
In rendering our opinion we have assumed the due
authorization, execution and delivery of each document referred
to herein by all parties to such document other than the Borrower.
Opinion of Counsel to the Borrower
__________________________________
</PAGE>
<PAGE>
- 2 -
Based upon the foregoing, we are of the opinion that:
1. The Borrower is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of [__________] and has the necessary corporate power to execute,
deliver and to perform its obligations under the Credit Documents
and to borrow under the Subsidiary Loan Agreement [and to accept
and assume the loan obligations assigned to it under the
Assignment Agreement]. The Borrower is duly qualified to
transact business in the State of [________________].
2. The execution and delivery by the Borrower of the
Credit Documents and the performance by the Borrower of its
obligations under the Credit Documents have been duly authorized
by all necessary corporate action on the part of the Borrower and
do not violate any provision of the charter or by-laws of the
Borrower, or any provision of any federal or New York law or
regulation applicable to the Borrower, or result in the breach
of, or constitute a default or require any consent under, or
(except for Permitted Liens) result in the creation of any Lien
upon any of the Properties of the Borrower pursuant to any
indenture or other agreement or instrument listed on Exhibit A
hereto, except for any such violation, breach, default, Lien or
failure to obtain a consent that would not have a Material
Adverse Effect.
3. Each of the Credit Documents constitutes the legal,
valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its respective terms, except as
such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general
applicability relating to or affecting the enforcement of
creditors' rights and (b) the application of general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). We express no
opinion as to (i) whether a federal or state court outside of the
State of New York would give effect to the choice of New York law
provided for in the Subsidiary Loan Agreement, (ii) the second
sentence of Section 10.08 of the Subsidiary Loan Agreement,
insofar as such sentence relates to the subject matter
jurisdiction of the United States District Court for the Southern
District of New York to adjudicate any controversy related to the
Subsidiary Loan Agreement or the Notes, (iii) the waiver of
inconvenient forum set forth in Section 10.08 of the Subsidiary
Loan Agreement or (iv) Section 10.09 of the Subsidiary Loan
Agreement. For purposes of this paragraph, we wish to note that
(y) provisions of the Subsidiary Loan Agreement which permit any
Agent or any Bank to take action or make determinations may be
Opinion of Counsel to the Borrower
__________________________________
</PAGE>
<PAGE>
- 3 -
subject to a requirement that such action be taken or such
determinations be made on a reasonable basis and in good faith
and (z) a holder of a Note may, under certain circumstances, be
called upon to prove the outstanding amount of the Loans
evidenced thereby.
4. No authorization, consent or approval of, and no
filing or registration with, any governmental authority of the
State of New York or the United States is required on behalf of
the Borrower in connection with the execution or delivery by the
Borrower of the Credit Documents or the performance by the
Borrower of the Credit Documents, except (a) the filings referred
to in Section 7.05(a) of the Subsidiary Loan Agreement and (b)
authorizations, consents, approvals, filings or registrations
which, if not obtained or made, as the case may be, would not
reasonably be likely to have a Material Adverse Effect.
In rendering the opinions in paragraph 2 above, we have
assumed that at the time of incurrence of any Loan by the
Borrower, such Loan would be permitted by the terms of Section
4.11 of the Senior Subordinated Indenture.
In rendering the foregoing opinion, with your
permission, we express no opinion as to the effect of any federal
or state laws regarding fraudulent conveyances, or of provisions
of Delaware or New York law restricting dividends, loans or other
distributions by a corporation or for the benefit of its
stockholders, on the validity or enforceability of any of the
Subsidiary Loan Documents.
This opinion is limited to laws of the State of New
York, the federal laws of the United States of America (other
than the Federal Communications Act of 1934, as amended, and the
regulations promulgated thereunder) and the General Corporation
Law of the State of Delaware.
Very truly yours,
Opinion of Counsel to the Borrower
__________________________________
</PAGE>
<PAGE>
EXHIBIT B-2
[Form of Opinion of FCC Counsel to the Borrower]
___________, 199_
To The Chase Manhattan Bank (National Association),
as Administrative Agent, and each of the Banks
party to the [Amended and Restated] Loan Agreement
referred to below
Ladies and Gentlemen:
We have acted as FCC counsel to ______________________
__________________ (the "Borrower") in connection with the
[Amended and Restated] Loan Agreement dated as of
_______________, 199_ (the "Subsidiary Loan Agreement") between
the Borrower and The Chase Manhattan Bank (National Association),
as administrative agent for the lenders identified on Schedule I
thereto. This opinion is being furnished to you pursuant to
Section 6.01(c) of the Subsidiary Loan Agreement. Except as
otherwise specified herein, terms defined in the Subsidiary Loan
Agreement are used herein as defined therein.
For purposes of this opinion, we have examined: (i)
the Subsidiary Loan Agreement; (ii) the form of the Note attached
as Exhibit A to the Subsidiary Loan Agreement [; (iii) the
Assignment and Assumption Agreement dated as of _____________,
199_, between the Borrower and Infinity Broadcasting Corporation]
(together, the "Subsidiary Loan Documents"); and (iii) [(iv)]
original or copies certified to our satisfaction of such other
documents, records and instruments as we have deemed necessary in
connection with the opinions hereinafter expressed.
In rendering the opinions expressed herein, we have
assumed with your permission and without independent
investigation that (a) where any such signature purports to have
been made in a corporate, governmental, fiduciary, or other
capacity, the person who affixed such signature to such documents
had authority to do so, (b) the authenticity of documents
submitted to us as original, and the conformity to authentic
original documents of all documents submitted to us as certified,
conformed or photostatic copies and (c) the correctness of public
files, records and certificates of, or furnished by, governmental
or regulatory agencies or authorities.
Opinion of FCC Counsel to the Borrower
______________________________________
</page>
<PAGE>
________________, 199_
Page 2
As to questions of fact relevant to this opinion, we
have relied upon examination of our own files and records and
appropriate examination of public files of the FCC as of
___________, 199_. We have also relied upon representations made
by the Borrower to the FCC and upon a certificate of fact of an
officer of the Borrower. As used herein, the term "to our
knowledge" shall mean the conscious awareness of facts by the
lawyers in this firm primarily responsible for preparing this
opinion letter and for reviewing the Subsidiary Loan Documents
without further investigation other than as described in this
paragraph. In particular, we have not undertaken an on-site
investigation or independent evaluation of the Borrower's
operations and in any event do not express any opinion regarding
the technical operations of the Station (as defined below). You
should be aware that records of the FCC that are public as a
matter of law -- for example, under the federal Freedom of
Information Act -- may not be contained in the public files of
the FCC that we examined in connection with this opinion.
Furthermore, there may be records of matters pending at the FCC
that are not available for inspection by the public as a matter
of law.
This opinion is limited to matters arising under the
Communications Act of 1934, as amended (the "Act"), the published
rules and published opinions of the FCC and pertinent court
decisions, and we express no opinion as to any other laws.
Based upon and subject to the foregoing and to the
further qualifications, assumptions and limitations set forth
herein, we are of the opinion that:
1. The Borrower validly holds the FCC licenses listed
in Exhibit A hereto (the "FCC Licenses"). Such FCC licenses
include all licenses, permits and authorizations of the FCC
necessary for the Borrower to operate the [FM/AM] radio broadcast
station indicated on such Exhibit A (the "Station").
2. To our knowledge, the Borrower has filed with the
FCC all reports, documents, instruments, information and
applications required to be filed pursuant to the FCC's rules and
regulations.
3. Subject to the qualifications set forth in the next
sentence, the execution and delivery of each of the Subsidiary
Loan Documents by the Borrower and the borrowings by the Borrower
under the Subsidiary Loan Agreement (i) do not and will not
violate the Act, (ii) will not violate the published rules and
regulations of the FCC, (iii) will not cause any forfeiture or
impairment of any FCC License by or before the FCC and (iv) will
Opinion of FCC Counsel to the Borrower
______________________________________
</page>
<PAGE>
________________, 199_
Page 3
not require the approval of the FCC. We call your attention to
the fact that a copy of the Subsidiary Loan Agreement may be
required to be filed by the Borrower with the FCC within thirty
(30) days after its execution.
We hereby confirm to you that, except as described in
Schedule II to the Subsidiary Loan Agreement, to our knowledge,
(1) there is not now issued or outstanding any notice of
violation, order to show cause, material complaint or
investigation by or before the FCC which might threaten or
adversely affect the Borrower's FCC Licenses or result in any
material adverse effect on the Borrower's operation of the
Station; (2) there is no pending or threatened action or matter
that would lead us to believe that the FCC Licenses held by the
Borrower with respect to the Station will not be renewed; and (3)
no notice has been issued by the FCC that now, or after further
notice or lapse of time or both would result in, a revocation or
termination of any FCC License prior to the expiration date
thereof.
The opinions set forth above are as of the date hereof.
We assume no obligation to advise you of changes which may
thereafter by brought to our attention. Our opinions are based
on statutory laws, agency rules, regulations and policies, and
judicial decisions that are effective on the date hereof, and we
do not opine with respect to any law, regulation, rule or
governmental policy which may be enacted or adopted after the
date hereof, nor do we assume any responsibility to advise you of
future changes in our opinions.
This opinion letter is provided to you by us in our
capacity as special FCC counsel to the Borrower and may not be
relied upon by any person for any purpose other than in
connection with the transactions contemplated by the Subsidiary
Loan Agreement without, in each instance, our prior written
consent.
Very truly yours,
LEVENTHAL, SENTER & LERMAN
By: _________________________
A Partner
Opinion of FCC Counsel to the Borrower
______________________________________
</page>
<PAGE>
EXECUTION COUNTERPART
===================================================================
INFINITY BROADCASTING CORPORATION OF BOSTON
AMENDED AND RESTATED LOAN AGREEMENT
Dated as of December 22, 1994
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
================================================================
</page>
<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 . . . . . . . . . . . . . . . . . . . 1
1.01 Certain Defined Terms. . . . . . . . . . . . . . . . . . . . 1
1.02 Types of Loans . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.01 Conversion of Loans. . . . . . . . . . . . . . . . . . . . . 8
2.02 Lending Offices. . . . . . . . . . . . . . . . . . . . . . . 8
2.03 Remedies Independent . . . . . . . . . . . . . . . . . . . . 9
2.04 Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.05 Conversions or Continuations of Loans. . . . . . . . . . . . 9
Section 3. Payments of Principal and Interest . . . . . . . . . . . . . 9
3.01 Repayment of Loans . . . . . . . . . . . . . . . . . . . . . 9
3.02 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.03 Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4. Payments; Pro Rata Treatment; Computations;
Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.02 Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . 12
4.03 Computations . . . . . . . . . . . . . . . . . . . . . . . . 13
4.04 Non-Receipt of Funds by the Administrative
Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Yield Protection, Etc. . . . . . . . . . . . . . . . . . . . 13
5.01 Additional Costs . . . . . . . . . . . . . . . . . . . . . . 13
5.02 Limitation on Eurodollar Loans . . . . . . . . . . . . . . . 16
5.03 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.04 Treatment of Affected Loans. . . . . . . . . . . . . . . . . 17
5.05 Compensation . . . . . . . . . . . . . . . . . . . . . . . . 17
5.06 U.S. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.07 Replacement or Prepayment of Certain Banks . . . . . . . . . 21
Section 6. Conditions Precedent . . . . . . . . . . . . . . . . . . . . 21
6.01 Effectiveness of Amendment and Restatement . . . . . . . . . 21
Section 7. Representations and Warranties . . . . . . . . . . . . . . . 23
7.01 Corporate Existence. . . . . . . . . . . . . . . . . . . . . 23
7.02 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.03 No Breach. . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.04 Action . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.05 Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.06 Use of Loans . . . . . . . . . . . . . . . . . . . . . . . . 24
(i)
</page>
<PAGE>
Section 8. Covenants of the Borrower. . . . . . . . . . . . . . . . . . 24
8.01 Financial Information. . . . . . . . . . . . . . . . . . . . 25
8.02 Existence, Etc.. . . . . . . . . . . . . . . . . . . . . . . 25
8.03 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . 25
Section 9. Events of Default. . . . . . . . . . . . . . . . . . . . . . 25
Section 10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 27
10.01 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.03 Expenses, Etc.. . . . . . . . . . . . . . . . . . . . . . . 28
10.04 Successors and Assigns. . . . . . . . . . . . . . . . . . . 28
10.05 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . 29
10.06 Captions. . . . . . . . . . . . . . . . . . . . . . . . . . 29
10.07 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 29
10.08 Governing Law; Submission to Jurisdiction . . . . . . . . . 29
10.09 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . 29
10.10 Appointment of Infinity as Agent. . . . . . . . . . . . . . 30
(ii)
</page>
<PAGE>
SCHEDULE I - Banks and Loans
SCHEDULE II - Litigation
EXHIBIT A - Form of Note
EXHIBIT B-1 - Form of Opinion of Counsel to the Borrower
EXHIBIT B-2 - Form of Opinion of FCC Counsel to the Borrower
(iii)
</page>
<PAGE>
AMENDED AND RESTATED LOAN AGREEMENT dated as of
December 22, 1994 between: INFINITY BROADCASTING CORPORATION OF
BOSTON, a corporation duly organized and validly existing under
the laws of the State of Delaware (together with its successors
and assigns, the "Borrower"); and THE CHASE MANHATTAN BANK
________
(NATIONAL ASSOCIATION), a national banking association, as
Administrative Agent under the Infinity Credit Agreement referred
to below for each of the lenders identified under the caption
"BANKS" on Schedule I hereto or which hereafter shall hold loans
to the Borrower hereunder (individually, a "Bank" and,
____
collectively, the "Banks") (in such capacity, together with its
_____
successors in such capacity, the "Administrative Agent").
____________________
The Borrower and the Administrative Agent are parties
to a Loan Agreement dated as of June 7, 1994 (such Loan
Agreement, as modified and supplemented and as in effect
immediately prior to the Effective Date referred to below, the
"Existing Loan Agreement") governing loans (the "Existing Loans")
_______________________ ______________
held by the Banks to the Borrower.
The Borrower wishes to amend and restate the Existing
Loan Agreement. Accordingly, the Borrower has requested and the
Banks and the Administrative Agent have agreed, effective as of
the Effective Date (as such term is defined below), that the
Existing Loan 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 Loan Agreement reads in its entirety as provided in this
Amended and Restated Loan Agreement (provided that (i) if the
Effective Date does not occur on or prior to December 31, 1994,
this Agreement shall terminate and be of no further force and
effect and the Existing Loan Agreement shall not be so amended
and restated, and (ii) the obligations of the Borrower referred
to in Section 10.03 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.
____________________________
1.01 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):
____ _____
"Agreement" shall mean this Amended and Restated Loan
_________
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 Loan Agreement
as a whole and not to any particular provision of this Amended
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 2 -
and Restated Loan 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 Loan Agreement (and not to the date of the Existing
Loan Agreement).
"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 have the meaning assigned
_________________
thereto in the Infinity Credit Agreement as in effect from time
to time.
"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 1/2 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.
"Business Day" shall mean (a) any day on which
____________
commercial banks are not authorized or required to close in New
York City and (b) if such day relates to a payment or prepayment
of principal of or interest on, or an Interest Period for, a
Eurodollar Loan or a notice by the Borrower with respect to any
such borrowing, payment, prepayment or Interest Period, or to a
Continuation of or a Conversion of or into a Eurodollar Loan or a
notice by the Borrower with respect to any such Continuation or
Conversion, such day shall also be a day on which dealings in
Dollar deposits are carried out in the London interbank market.
"Chase" shall mean The Chase Manhattan Bank (National
_____
Association).
"Closing Date" shall mean the date on which the
____________
Administrative Agent gives notice (such notice to be effective
upon dispatch) to the Borrower and the Banks that all of the
conditions precedent to the effectiveness of this Agreement set
forth in Section 6 hereof shall have been satisfied or waived by
such of the Banks as are required for such purpose.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 3 -
"Code" shall mean the Internal Revenue Code of 1986, as
____
amended from time to time.
"Continue", "Continuation" and "Continued" shall refer
________ ____________ _________
to the continuation pursuant to Section 2.05 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 2.05 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
sole discretion) of a Loan from one Applicable Lending Office to
another.
"Credit Documents" shall mean, collectively, this
________________
Agreement and the Notes.
"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.
"Dollars" and "$" shall mean lawful money of the United
_______ _
States of America.
"Effective Date" shall have the meaning assigned
______________
thereto in the Infinity Credit Agreement.
"Eurodollar Base Rate" shall mean, with respect to any
____________________
Eurodollar Loan or any LIBOR Market 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. If
any Reference Bank does not timely furnish such information for
determination of any Eurodollar Rate, the Administrative Agent
shall determine such rate on the basis of the information timely
furnished by the remaining Reference Banks.
"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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 4 -
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.
"FCC" shall mean the Federal Communications Commission
___
or any successor thereto.
"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.
"Infinity" shall mean Infinity Broadcasting
________
Corporation, a Delaware corporation that owns, directly or
indirectly, all of the issued and outstanding capital stock of
the Borrower.
"Infinity Credit Agreement" shall mean the Second
_________________________
Amended and Restated Credit Agreement dated as of December 22,
1994 between Infinity, the lenders party thereto, Chase, as
Administrative Agent, Bank of America Illinois, The Bank of
Montreal, The Bank of New York, Chemical Bank, Compagnie
Financiere de CIC et de l'Union Europeenne, The First National
Bank of Boston and National Westminster Bank USA, as Co-Agents,
and Chemical Bank, as Collateral Agent, as the same shall be
modified and supplemented and in effect from time to time.
"Interest Accrual Date" shall mean (i) with respect to
_____________________
any Loan outstanding on the Effective Date that was converted
from an Existing Loan to a Loan pursuant to Section 2.01 hereof,
the day immediately following the last day through which interest
has been paid on such Loan under the Existing Loan Agreement;
provided that if on the Effective Date or the effective date of
________
any such assignment there shall be outstanding or assigned both
Base Rate Loans and Eurodollar Loans and/or Eurodollar Loans
having different Interest Periods, the "Interest Accrual Date"
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 5 -
with respect to all such Loans then outstanding or so assigned,
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 Class, with the
approval of all of the Banks) twelfth calendar month thereafter,
as the Borrower may select as provided in Section 4.05 of the
Infinity Credit Agreement, except that each Interest Period which
commences on the last Business Day of a 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 may commence before and end after any Principal Payment Date
unless, after giving effect thereto, the aggregate principal
amount of the Loans having Interest Periods which end after such
Principal Payment Date shall be equal to or less than the
aggregate principal amount of the Loans 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.
"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 have the meaning assigned thereto in
_____
Section 2.01 hereof.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 6 -
"Majority Banks" shall have the meaning assigned
______________
thereto in the Credit Agreement.
"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 Infinity and its
Subsidiaries taken as a whole, (b) the ability of the Borrower to
perform its obligations under the Credit Documents, (c) the
validity or enforceability of any of the Credit Documents, (d)
the rights and remedies of any of the Banks and the
Administrative Agent under any of the Credit Documents or (e) the
timely payment of the principal of or interest on the Loans or
other amounts payable in connection therewith.
"Notes" shall mean the promissory notes provided for by
_____
Section 2.04 hereof.
"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).
"Post-Default Rate" shall mean, in respect of any
_________________
principal of or interest on any Loan or any other amount payable
by the Borrower under this Agreement or any Note that is not paid
when due (whether at stated maturity, by acceleration, by
optional or mandatory prepayment or otherwise), a rate per annum
during the period from and including the due date therefor to but
excluding the date such amount is paid in full equal to the
lesser of (a) 2% plus the Base Rate as in effect from time to
____
time plus the Applicable Margin for Base Rate Loans (provided
____ ________
that, if the amount so in default 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, 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.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 7 -
"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 each Quarterly Date
______________________
on which a principal payment in respect of the Loans is required
to be made pursuant to Section 3.01 hereof.
"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.
"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.
"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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 8 -
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.
"Senior Officer" shall mean the President or the Vice
______________
President-Finance of the Borrower.
"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.
"Type" shall have the meaning assigned to such term in
____
Section 1.02 hereof.
1.02 Types of Loans. Loans hereunder are
______________
distinguished by "Type". The "Type" of a Loan refers to whether
such Loan is a Base Rate Loan or a Eurodollar Loan, each of which
constitutes a Type.
Section 2. Loans.
_____
2.01 Conversion of Loans. As of the Closing Date, all
___________________
of the Loans under and as defined in the Existing Loan Agreement
outstanding immediately prior to the Effective Date and
outstanding immediately prior to the Closing Date shall
constitute "Loans" hereunder (such Loans being herein
collectively called "Loans"). Subject to the terms and
_____
conditions of this Agreement, the Borrower may (as provided in
Section 2.05 hereof) Convert Loans of one Type into Loans of the
other Type or Continue Loans of one Type as Loans of the same
Type.
2.02 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.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 9 -
2.03 Remedies Independent. The amounts payable by the
____________________
Borrower at any time hereunder and under the Notes shall be a
separate and independent debt and each Bank shall be entitled to
protect and enforce its rights arising out of this Agreement and
the Notes, and it shall not be necessary for any other Bank or
the Administrative Agent to consent to, or be joined as an
additional party in, any proceedings for such purposes.
2.04 Notes. The Loans held by each Bank shall be
_____
evidenced by a single promissory note (each, a "Note") of the
____
Borrower in substantially the form of Exhibit A hereto, dated the
Interest Accrual Date, payable to the order of such Bank in a
principal amount equal to the amount set forth opposite such
Bank's name on Schedule I hereto and otherwise duly completed.
2.05 Conversions or Continuations of Loans. Subject
_____________________________________
to Sections 2,09. 2.10 and 4.04 of the Infinity Credit Agreement,
the Borrower shall have the right to Convert Loans of one Type
into Loans of the other Type or Continue Loans of one Type as
Loans of the same Type, at any time or from time to time.
Section 3. Payments of Principal and Interest.
__________________________________
3.01 Repayment of Loans. The Borrower hereby promises
__________________
to pay to the Administrative Agent for account of each Bank the
principal of the Loans held by such Bank that are outstanding on
June 30, 1998 in 20 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 principal amount of the Loans
outstanding at the close of business on June 30, 1998 held by
such Bank times (ii) the percentage set forth below opposite the
_____
related Principal Payment Date):
Principal Payment Date
Occurring In: Percentage
____________ __________
September 1998 6.250%
December 1998 6.250%
March 1999 3.750%
June 1999 3.750%
September 1999 3.750%
December 1999 3.750%
March 2000 4.375%
June 2000 4.375%
September 2000 4.375%
December 2000 4.375%
March 2001 5.000%
June 2001 5.000%
September 2001 5.000%
December 2001 5.000%
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 10 -
March 2002 5.000%
June 2002 5.000%
September 2002 5.000%
December 2002 5.000%
March 2003 7.500%
June 2003 7.500%
3.02 Interest.
________
(a) The Borrower 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
Borrower 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 Borrower
hereunder or under the Notes held by such Bank to or for account
of such Bank 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.
(c) Accrued interest on each Loan 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, (iii) in the case of any Loan,
upon the payment or prepayment thereof (but only on the principal
amount so paid or prepaid), and (iv) upon the Conversion of such
Loan to a Loan of the other Type (but only on the principal
amount so 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 interest rate provided
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 11 -
for herein or any change therein, the Administrative Agent shall
give notice thereof to the Banks and to the Borrower.
(d) Anything in this Agreement to the contrary
notwithstanding, with respect to each of the Loans made under the
Existing Loan Agreement prior to the Closing Date and outstanding
on the Closing Date as Eurodollar Loans: (i) the Interest Period
in effect for such Loan under the Existing Loan Agreement on the
Closing 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 Loan 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 Loan
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 Loan Agreement and, during that portion of such
Interest Period commencing on the Closing Date, the Applicable
Margin for such Loan provided for in Section 1.01 of this
Agreement.
3.03 Prepayments. Subject to Sections 3.03 and 4.04
___________
of the Infinity Credit Agreement, the Borrower shall have the
right to prepay Loans hereunder at any time or from time to time,
provided that nothing in this Section 3.03 shall relieve the
________
Borrower from its obligations under Section 5 hereof.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
________________________________________________
4.01 Payments.
________
(a) Except to the extent otherwise provided herein or
therein, all payments of principal, interest and other amounts to
be made by the Borrower under this Agreement and the Notes, 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 Borrower
with it (with notice to the Borrower and Infinity).
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 12 -
(c) The Borrower shall, at the time it makes any
payment under this Agreement or any of its Notes, notify the
Administrative Agent (which shall so notify the intended
recipient(s) thereof) of the Loans or other amounts payable by
the Borrower hereunder to which such payment is to be applied in
which case such payment shall be so applied, subject to
Section 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 Section 4.02).
(d) Each payment received by the Administrative Agent
under this 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 Borrower hereunder shall be
made without deduction, set-off or counterclaim.
(f) If the due date of any payment under this
Agreement or any Note of the Borrower 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.
4.02 Pro Rata Treatment. Except to the extent
__________________
otherwise provided herein or in Section 4.02 of the Infinity
Credit Agreement:
(a) the Conversion and Continuation of Loans of a
particular type (other than Conversions provided for by
Section 5.04 hereof) shall be made pro rata among the Banks
holding Loans of such type according to the respective
principal amounts of their Loans, and Eurodollar Loans of a
particular type having the same Interest Period shall be
allocated pro rata among the Banks according to the amounts
of their respective Loans of such type;
(b) each payment or prepayment of principal of Loans
of a particular type shall be made to the Administrative
Agent for account of the Banks holding Loans of such type
pro rata in accordance with the respective unpaid principal
amounts of the Loans of such type held by such Banks; and
(c) each payment of interest on Loans of a particular
type shall be made to the Administrative Agent for account
of the Banks holding Loans of such type pro rata in
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 13 -
accordance with the amounts of interest on Loans of such
type then due and payable to such Banks.
4.03 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 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
shall be computed on the basis of a year of 360 days and actual
days elapsed.
4.04 Non-Receipt of Funds by the Administrative Agent.
________________________________________________
Unless the Administrative Agent shall have been notified by a
Bank or the 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 Borrower) a payment to the Administrative
Agent for account of one or more of the Banks hereunder (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 Borrower, 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.
Section 5. Yield Protection, Etc.
______________________
5.01 Additional Costs.
________________
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 14 -
(a) The Borrower 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 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 of such extensions of credit
or liabilities).
If any Bank requests compensation from the Borrower under this
Section 5.01(a), the Borrower 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).
(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 Borrower
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 15 -
(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
Borrower 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
____________
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 Borrower 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 16 -
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 Borrower for such compensation.
Each Bank will furnish to the Borrower 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.
5.02 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, 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; then the Administrative Agent shall
give the Borrower 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 Borrower 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 2.05
hereof.
5.03 Illegality. Notwithstanding any other provision
__________
of this Agreement, 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 Borrower thereof (with a copy to the Administrative
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 17 -
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).
5.04 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
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 Borrower 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 Borrower 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.
5.05 Compensation. The Borrower 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 18 -
Bank) to compensate it for any loss, cost or expense which such
Bank determines is attributable to 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. 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 Borrower 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.
5.06 U.S. Taxes.
__________
(a) From time to time after the date hereof if
requested by the Borrower 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
Administrative Agent and the Borrower 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 and under the Notes. If such Bank
has transferred a beneficial interest in any part of the Notes
payable to it, it will forward to the Borrower or the
Administrative Agent any such statements or forms executed by the
Person to which it has transferred such beneficial interest.
(b) The Borrower and the Administrative Agent shall be
entitled to deduct and withhold any and all present or future
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 19 -
taxes or withholdings, and all liabilities with respect thereto,
from payments hereunder or under the Notes, if and to the extent
that the Borrower 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
Borrower 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
Borrower or the Administrative Agent shall so deduct or withhold
taxes from amounts payable hereunder, 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 Borrower and the Administrative Agent shall have
received forms or other documents satisfactory to them indicating
that payments hereunder or under any Note or not subject to
United States withholding tax or are subject to such tax at a
rate reduced by an applicable tax treaty, the Borrower or the
Administrative Agent may withhold taxes from such payments at the
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
Borrower 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); and
(ii) to indemnify the Borrower and the Administrative Agent and
any officers, directors, agents or employees of the Borrower 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).
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 20 -
(d) Each assignee of a Bank's interest in this
Agreement 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 Borrower shall have consented in writing to such assignment,
no assignee of a Bank's interest in this 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 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 Borrower
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
Borrower shall make such deductions and (iii) the Borrower 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. 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 Borrower 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 Borrower 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 Borrower 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 21 -
subject to withholding taxes. In the event the credit is later
disallowed, deferred or recaptured for any reason, the Borrower
will pay the Bank such amount as will equal the amount of the
credit so disallowed, deferred or recaptured, provided that the
Borrower 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 Borrower
by such Bank in respect of such credit. In any such case, the
applicable Bank shall provide to the Borrower a statement in
reasonable detail setting forth the determination of such credit
utilized by such Bank.
5.07 Replacement or Prepayment of Certain Banks. The
__________________________________________
Borrower 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 below require that such Bank assign
(in which case such Bank shall assign) as provided in Section
11.06(a) of the Infinity Credit Agreement all (but not less than
all) of its Loans to one or more other financial institutions
(which may be "Banks" hereunder) specified by the Borrower 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 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 Borrower 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 Borrower would be required to pay such
Bank if the Loans assigned by it were being prepaid by the
Borrower on the date of such consummation) and (y) all other
amounts then owing by the Borrower to or for the account of such
Bank hereunder (other than such principal of its Loans and such
interest).
Section 6. Conditions Precedent.
____________________
6.01 Effectiveness of Amendment and Restatement. The
__________________________________________
effectiveness of the amendment and restatement of this Agreement
and the conversion of the Existing Loans to Loans hereunder shall
be subject to the receipt by the Administrative Agent of the
following, each of which shall be satisfactory to the
Administrative Agent in form and substance:
(a) Corporate Documents. A certificate from the
___________________
Secretary of State of the state in which the Borrower is
organized or has its principal place of business dated as of
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 22 -
a recent date as to the good standing (or its equivalent) of
and, with respect to the Borrower's state of organization,
the charter documents filed by the Borrower and copies,
certified by a Secretary or an Assistant Secretary of the
Borrower, of the charter and by-laws (or equivalent
documents) of the Borrower and of all corporate authority
for the Borrower (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 Credit Documents and each other
document to be delivered by the Borrower from time to time
in connection herewith and the Loans hereunder (and the
Administrative Agent and each Bank may conclusively rely on
such certificate until it receives notice in writing from
such Obligor to the contrary).
(b) Officer's Certificate. A certificate of a Senior
_____________________
Officer of the Borrower dated the Closing Date to the effect
that after giving effect to the borrowing hereunder and to
the proposed use of the Loans (i) no Default shall have
occurred and be continuing; and (ii) the representations and
warranties made by the Borrower in Section 7 hereof shall be
true in all material respects on and as of the date of such
certificate 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).
(c) Opinion of Counsel to the Borrower and FCC Counsel
__________________________________________________
to the Borrower. An opinion of counsel (reasonably
_______________
acceptable to the Administrative Agent) to the Borrower,
dated the Closing Date, substantially in the form of
Exhibit B-1 hereto and an opinion of FCC counsel (reasonably
acceptable to the Administrative Agent) to the Borrower,
dated the Closing Date, substantially in the form of Exhibit
B-2 hereto (and the Borrower hereby instructs each such
counsel to deliver its opinion to the Banks and the
Administrative Agent).
(d) Notes. The Notes, duly completed and executed and
_____
delivered.
(e) 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 Credit Documents and the other transactions
contemplated hereby have been obtained and are in full force
and effect.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 23 -
(f) Fees and Expenses. Evidence that all amounts
_________________
payable by the Borrower on or prior to the date hereof in
connection with this Agreement, including without
limitation, under Section 10.03 hereof have been paid in
full (in the case of amounts payable under said Section
10.03, to the extent that invoices therefor have been
delivered to the Borrower).
(g) Other Documents. Such other documents as the
_______________
Administrative Agent or special New York counsel to Chase
may reasonably request.
Section 7. Representations and Warranties. The
______________________________
Borrower represents and warrants to the Banks and the
Administrative Agent that:
7.01 Corporate Existence. Each of the Borrower and
___________________
its 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.
7.02 Litigation. Except as set forth in Schedule II
__________
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 Borrower)
threatened against the Borrower or any of its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect.
7.03 No Breach. None of the execution and delivery of
_________
this Agreement and the Notes, 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 the Borrower, 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
Borrower or any of its 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 24 -
Adverse Effect or result in the creation or imposition of any
Lien upon any Property of the Borrower or any of its Subsidiaries
pursuant to the terms of any such agreement or instrument.
7.04 Action. The Borrower has all necessary corporate
______
power and authority to execute, deliver and perform its
obligations under each of the Credit Documents; the execution,
delivery and performance by the Borrower of each of the Credit
Documents have been duly authorized by all necessary corporate
action on its part; and each of this Agreement and the Notes has
been duly and validly executed and delivered by the Borrower and
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
enforceability is considered in a proceeding in equity or at
law).
7.05 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 the Borrower of this Agreement or the Notes, for
the consummation of the transactions contemplated hereby or
thereby, or for the validity or enforceability thereof, except
for (a) 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, and (b) authorizations, approvals, consents,
filings or registrations (other than any of the foregoing to be
obtained from the FCC) which, if not made or obtained, could not
reasonably be expected to have a Material Adverse Effect.
7.06 Use of Loans. Neither the Borrower 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 will be used to buy or carry any
Margin Stock.
Section 8. Covenants of the Borrower. The Borrower
_________________________
covenants and agrees with the Banks and the Administrative Agent
that, so long as any Loan is outstanding and until payment in
full of all amounts payable by the Borrower hereunder:
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 25 -
8.01 Financial Information. The Borrower will deliver
_____________________
to each of the Banks promptly, from time to time, such
information regarding (a) the business, affairs, operations or
conditions (financial or otherwise) of the Borrower or any of its
Subsidiaries, (b) compliance by the Borrower with its obligations
contained herein and (c) the transactions contemplated hereby, in
each case as any Bank or the Administrative Agent may reasonably
request.
8.02 Existence, Etc. The Borrower will, and will
______________
cause each of its Subsidiaries to: (a) preserve and maintain its
legal existence and all of its material rights, privileges and
franchises; (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).
8.03 Use of Proceeds. The Borrower will use the
_______________
proceeds of the Loans solely for financing acquisitions of radio
stations (including net working capital of radio stations so
acquired) by the Borrower and/or any of its Restricted
Subsidiaries (in compliance with all applicable legal and
regulatory requirements).
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 Borrower shall default in the payment or
prepayment when due of any principal of or interest on any
Loan hereunder; or the Borrower 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 26 -
(b) Any representation, warranty or certification made
or deemed made in any Credit Document (or in any
modification or supplement thereto) by the Borrower, or any
certificate furnished to any Bank or any of the
Administrative Agent 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
(c) The Borrower or any of its Subsidiaries or
Infinity shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due;
or
(d) The Borrower or any of its Subsidiaries or
Infinity 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 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
(e) A proceeding or case shall be commenced, without
the application or consent of the Borrower or any of its
Subsidiaries or Infinity, 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
Borrower or such Subsidiary or Infinity or of all or any
substantial part of its assets, or (iii) similar relief in
respect of the Borrower or such Subsidiary or Infinity 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 Borrower or such Subsidiary or Infinity
shall be entered in an involuntary case under the Bankruptcy
Code; or
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 27 -
(f) Any other "Event of Default" under and as defined
in the Infinity Credit Agreement shall have occurred and be
continuing;
THEREUPON: (i) in the case of an Event of Default other than an
Event of Default with respect to the Borrower or Infinity
referred to in clause (d) or (e) of this Section 9 the
Administrative Agent may and, upon request of the Majority Banks,
shall, by notice to the Company, declare the principal amount
then outstanding of, and the accrued interest on, the Loans and
all other amounts owing by the Borrower to the Administrative
Agent and the Banks under this Agreement 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 Borrower and (ii) in the case of the
occurrence of an Event of Default with respect to the Borrower or
Infinity referred to in clause (d) or (e) of this Section 9, the
principal amount then outstanding of, and the accrued interest
on, the Loans and all other amounts payable by the Borrower under
this Agreement 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 Borrower.
Section 10. Miscellaneous.
_____________
10.01 Waiver. No failure on the part of the
______
Administrative 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.
10.02 Notices. All notices and other communications
_______
provided for herein (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, in the case of the Banks, at the "Address for
Notices" specified below its name on the signature pages of the
Infinity Credit Agreement; or, as to any party or any Bank, at
such other address as shall be designated by such party or Bank
in a notice to each other party and Bank. Except as otherwise
provided in this Agreement, all such communications shall be
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 28 -
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.
10.03 Expenses, Etc. The Borrower agrees to pay or
______________
reimburse each of the Banks and the Administrative Agent for
paying: (a) all reasonable out-of-pocket costs and expenses of
the Administrative Agent (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 Credit Documents and the making of Loans
hereunder and (ii) any amendment, modification or waiver of any
of the terms of this Agreement or any of the other Credit
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 10.03); 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 Credit 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 Credit
Document or any other document referred to herein or therein.
The Borrower hereby agrees (to the fullest extent
permitted by law) to indemnify the Administrative 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 the Administrative 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 Loans or
any actual or proposed use by the Borrower 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).
10.04 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 29 -
the Borrower may not assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of
the Banks and the Administrative Agent. No Bank may assign any
of its rights or obligations hereunder or with respect to any of
the Loans other than in accordance with Section 11.06 of the
Infinity Credit Agreement.
10.05 Survival. The obligations of the Borrower under
________
Sections 5.01, 5.05, 5.06 and 10.03 hereof shall survive the
repayment of the Loans. In addition, each representation and
warranty made, or deemed to be made 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
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.
10.06 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.
10.07 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.
10.08 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 Borrower
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
Borrower 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.
10.09 Waiver of Jury Trial. EACH OF THE BORROWER AND
____________________
THE ADMINISTRATIVE AGENT 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.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 30 -
10.10 Appointment of Infinity as Agent. The Borrower
________________________________
hereby irrevocably appoints Infinity as its agent for the purpose
of giving and receiving any and all notices and other
communications provided for herein and for all other purposes
hereunder and under the Notes. By its signature below, Infinity
hereby accepts such appointment.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 31 -
IN WITNESS WHEREOF, the parties hereto have caused this
Amended and Restated Loan Agreement to be duly executed as of the
day and year first above written.
INFINITY BROADCASTING CORPORATION
OF BOSTON
By
__________________________________
Name: Farid Suleman
Title: Vice President - Finance
Address for Notices:
Infinity Broadcasting Corporation
of Boston
c/o Infinity Broadcasting Corporation
600 Madison Avenue
New York, New York 10022
Attention: Mel Karmazin
Telecopier No.: (212) 888-2959
Telephone No.: (212) 750-6400
APPOINTMENT AS AGENT
IS HEREBY ACCEPTED:
INFINITY BROADCASTING CORPORATION
By
________________________________
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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 32 -
ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
By
__________________________________
Name:
Title:
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
with a copy to:
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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
SCHEDULE I
Banks and Loans
Name of Bank Amount of Loan
____________ ______________
Chase Manhattan $ 1,285,714.29
Bank of America $ 1,071,428.57
Bank of Boston $ 1,071,428.57
Bank of Montreal $ 1,071,428.57
Chemical Bank $ 1,071,428.57
CIC-Union $ 1,071,428.57
National Westminster Bank $ 1,071,428.57
The Bank of New York $ 1,071,428.57
Bank of Nova Scotia $ 1,071,428.57
Banque Paribas $ 1,028,571.43
NationsBank $ 1,028,571.43
Society National Bank $ 1,028,571.43
Union Bank $ 1,028,571.43
ABN AMRO Bank $ 900,000.00
Corestates $ 900,000.00
First Union National Bank $ 900,000.00
Fuji Bank, Limited $ 900,000.00
Midland Bank plc $ 900,000.00
Mitsubishi Trust $ 900,000.00
Nippon Credit Bank $ 900,000.00
Shawmut Bank $ 900,000.00
Societe Generale $ 857,142.86
Sumitomo Trust $ 857,142.86
The Bank of California, N.A. $ 857,142.86
BNP $ 857,142.86
Dai-Ichi Kangyo Bank, Ltd. $ 642,857.14
Daiwa Bank $ 642,857.14
NBD Bank, N.A. $ 642,857.14
PNC Bank $ 642,857.14
Royal Bank of Scotland $ 642,857.14
The Long Term Credit Bank $ 642,857.14
The Sumitomo Bank, Ltd. $ 642,857.14
National Bank of Canada $ 514,285.71
Bank of Ireland $ 428,571.43
______________
TOTAL $10,000,000.00
==============
Schedule I to Subsidiary Loan Agreement
_______________________________________
</page>
<PAGE>
SCHEDULE II
Litigation
__________
1. On November 20, 1990, the FCC issued a Notice of
_________
Apparent Liability for Monetary Forfeiture ("NAL") with respect
__________________________________________
to the broadcast by stations WXRK(FM), WYSP(FM), and WJFK-FM of
certain allegedly indecent material contained within "The Howard
Stern Show." On October 23, 1992, the FCC's Staff issued a
Memorandum Opinion and Order in which it determined that each of
____________________________
the three stations was liable for a forfeiture in the amount of
$2,000 per station. Two Petitions for Reconsideration filed by
the Company were subsequently denied by the FCC, and the FCC's
action became administratively final in October, 1993. In
December, 1993, the Company notified the FCC that it did not
intend to remit the forfeiture and instead wished to avail itself
of United States District Court de novo review, which must, by
__ ____
statute, be initiated by the government in the form of a
collection action. The government has taken no further action in
the matter.
2. On December 18, 1992, the FCC issued an NAL
advising the Company that it may be liable for a $600,000
monetary forfeiture for the broadcast by WXRK(FM), WYSP(FM), and
WJFK-FM of allegedly indecent material in several segments of
"The Howard Stern Show." The NAL stated that additional
enforcement action would result if additional violations of the
indecency regulations have occurred or should occur, and that
further action could include additional monetary forfeitures,
renewal of licenses for short (i.e., less than seven years) terms
____
or initiation of proceedings directed to the Company's
qualifications to remain an FCC licensee. On February 23, 1993,
the Company filed a Response with the FCC, vigorously asserting
that the cited material is not indecent and raising other
defenses. The matter is currently pending before the FCC.
3. On August 12, 1993, the FCC issued an NAL in the
amount of $500,000 against stations WJFK(AM) and WJFK-FM,
WXRK(FM), and WYSP(FM) relating to the broadcast of allegedly
indecent material within "The Howard Stern Show" on certain dates
in November and December, 1992 and January, 1993. The NAL stated
that if additional violations of FCC's indecency regulations
should occur, further enforcement action could include
proceedings focusing upon the Company's qualifications to be an
FCC licensee. On October 15, 1993, the Company filed a Response
which vigorously contested the allegations made in the NAL. The
matter is pending before the FCC.
4. On February 1, 1994, the FCC released an NAL in the
amount of $400,000 against stations WXRK(FM), WYSP(FM) and
WJFK(AM & FM) relating to the broadcast of allegedly indecent
material within "The Howard Stern Show" on four dates in August,
September and October, 1993. The Company's response was filed on
Schedule I to Subsidiary Loan Agreement
_______________________________________
</page>
<PAGE>
- 2 -
April 4, 1994, and vigorously contested the allegations of the
NAL. The matter is pending before the FCC.
5. On May 20, 1994, the FCC released an NAL in the
amount of $200,000 against Stations WXRK(FM), WJFK(AM & FM) and
WYSP(FM) relating to the broadcast of allegedly indecent material
within "The Howard Stern Show" on two dates, one in December,
1993 and one in January, 1994. The Company's response to the NAL
was filed on July 18, 1994, and vigorously contested the
allegations of the NAL. The matter is pending before the FCC.
6. On August 11, 1992, Hemisphere Broadcasting
Corporation, a subsidiary of the Company and licensee of Station
WBCN, received an inquiry letter from the FCC with respect to a
complaint alleging that the Station had broadcast an indecent
joke on its morning drive time program. On October 1, 1992, the
Company responded to the FCC's inquiry letter, contesting the
allegations contained therein. The matter is currently pending
at the FCC.
7. On August 5, 1993, an organization known as
Americans for Responsible Television ("ART") filed a pleading
styled as a Formal Petition to Deny against the Company's
application for consent to assignment of the KRTH, Los Angeles,
license. The Company filed an Opposition to the Petition on
August 16, 1993, and ART filed a Reply on August 23, 1993. On
approximately October 21, 1993, Mr. Al Westcott filed a late-
filed Petition to Deny the KRTH assignment application. On
February 1, 1994, the FCC granted the KRTH application and denied
both Petitions, and the Company closed the KRTH acquisition on
February 15, 1994. On March 3, 1994, ART filed a Petition for
Reconsideration of the FCC's grant, and on April 13, 1994, the
Company filed an Opposition thereto. The FCC has not yet acted
on these filings. Accordingly, the FCC's grant of the KRTH has
not become a Final Order, and the application remains pending
under the FCC's rules.
8. On November 3, 1994, ART filed a Petition to Deny
against the Company's application for FCC consent to the
assignment of the KLUV-FM, Dallas, Texas license. The arguments
advanced by ART were similar to those set forth in its Petition
against the KRTH assignment. ART cites two complaints relating
to allegedly indecent broadcasts not previously considered by the
FCC, one filed in March, 1994 relating to broadcasts on two
occasions on the Company's Station WBCN in February and March,
1994, and another relating to a September, 1994 broadcast on
Station WRNO in New Orleans, a station not licensed to the
Company, which carries the Howard Stern Show. On November 17,
1994, the Company filed an Opposition to the Petition which
vigorously contested the allegations set forth in the Petition,
and ART filed a Reply on November 23, 1994. The matter is
currently pending at the FCC.
Schedule II to Subsidiary Loan Agreement
________________________________________
</page>
<PAGE>
EXHIBIT A
[Form of Note]
PROMISSORY NOTE
$_______________ _________ __, 19__
New York, New York
FOR VALUE RECEIVED, INFINITY BROADCASTING CORPORATION OF
BOSTON, a Delaware corporation (the "Borrower"), 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
Borrower 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
the Borrower, 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 Amended and
Restated Loan Agreement dated as of December 22, 1994 (as
amended, modified and supplemented and in effect from time to
time, the "Loan Agreement") between the Borrower 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.
Note
____
</page>
<PAGE>
- 2 -
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
INFINITY BROADCASTING CORPORATION
OF BOSTON
By _________________________
Name:
Title:
Note
____
</page>
<PAGE>
- 3 -
SCHEDULE OF LOANS
This Note evidences Loans assumed, made, Continued or
Converted as contemplated by or under the within-described Loan
Agreement to the Borrower, 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
_________ ______ ____ ________ ________ _________ _______ ________
Note
_____
</page>
<PAGE>
EXHIBIT B-1
[Form of Opinion of Counsel to the Borrower]
Opinion of Counsel to the Borrower
__________________________________
</page>
<PAGE>
- 2 -
EXHIBIT B-2
[Form of Opinion of FCC Counsel to the Borrower]
Opinion of Counsel to the Borrower
__________________________________
</page>
<PAGE>
EXECUTION COUNTERPART
=============================================================================
INFINITY BROADCASTING CORPORATION OF CALIFORNIA
AMENDED AND RESTATED LOAN AGREEMENT
Dated as of December 22, 1994
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
========================================================================
</page>
<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 . . . . . . . . . . . . . . . . . . . 1
1.01 Certain Defined Terms. . . . . . . . . . . . . . . . . . . . 1
1.02 Types of Loans . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.01 Conversion of Loans; Additional Loans. . . . . . . . . . . . 9
2.02 Lending Offices. . . . . . . . . . . . . . . . . . . . . . . 9
2.03 Remedies Independent . . . . . . . . . . . . . . . . . . . . 9
2.04 Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.05 Conversions or Continuations of Loans. . . . . . . . . . . . 9
Section 3. Payments of Principal and Interest . . . . . . . . . . . . . 9
3.01 Repayment of Loans . . . . . . . . . . . . . . . . . . . . . 9
3.02 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.03 Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4. Payments; Pro Rata Treatment; Computations;
Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.02 Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . 13
4.03 Computations . . . . . . . . . . . . . . . . . . . . . . . . 13
4.04 Non-Receipt of Funds by the Administrative
Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5. Yield Protection, Etc. . . . . . . . . . . . . . . . . . . . 14
5.01 Additional Costs . . . . . . . . . . . . . . . . . . . . . . 14
5.02 Limitation on Eurodollar Loans . . . . . . . . . . . . . . . 17
5.03 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.04 Treatment of Affected Loans. . . . . . . . . . . . . . . . . 17
5.05 Compensation . . . . . . . . . . . . . . . . . . . . . . . . 18
5.06 U.S. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.07 Replacement or Prepayment of Certain Banks . . . . . . . . . 21
Section 6. Conditions Precedent . . . . . . . . . . . . . . . . . . . . 22
6.01 Effectiveness of Amendment and Restatement . . . . . . . . . 22
Section 7. Representations and Warranties . . . . . . . . . . . . . . . 24
7.01 Corporate Existence. . . . . . . . . . . . . . . . . . . . . 24
7.02 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.03 No Breach. . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.04 Action . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.05 Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.06 Use of Loans . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 8. Covenants of the Borrower. . . . . . . . . . . . . . . . . . 25
(i)
</page>
<PAGE>
8.01 Financial Information. . . . . . . . . . . . . . . . . . . . 25
8.02 Existence, Etc.. . . . . . . . . . . . . . . . . . . . . . . 25
8.03 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . 26
Section 9. Events of Default. . . . . . . . . . . . . . . . . . . . . . 26
Section 10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 28
10.01 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.03 Expenses, Etc.. . . . . . . . . . . . . . . . . . . . . . . 28
10.04 Successors and Assigns. . . . . . . . . . . . . . . . . . . 29
10.05 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . 29
10.06 Captions. . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.07 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 30
10.08 Governing Law; Submission to Jurisdiction . . . . . . . . . 30
10.09 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . 30
10.10 Appointment of Infinity as Agent. . . . . . . . . . . . . . 30
(ii)
</page>
<PAGE>
SCHEDULE I - Banks and Loans
SCHEDULE II - Litigation
EXHIBIT A - Form of Note
EXHIBIT B-1 - Form of Opinion of Counsel to the Borrower
EXHIBIT B-2 - Form of Opinion of FCC Counsel to the Borrower
(iii)
</page>
<PAGE>
AMENDED AND RESTATED LOAN AGREEMENT dated as of
December 22, 1994 between: INFINITY BROADCASTING CORPORATION OF
CALIFORNIA, a corporation duly organized and validly existing
under the laws of the State of Delaware (together with its
successors and assigns, the "Borrower"); and THE CHASE MANHATTAN
BANK (NATIONAL ASSOCIATION), a national banking association, as
Administrative Agent under the Infinity Credit Agreement referred
to below for each of the lenders identified under the caption
"BANKS" on Schedule I hereto or which hereafter shall hold loans
to the Borrower hereunder (individually, a "Bank" and,
collectively, the "Banks") (in such capacity, together with its
successors in such capacity, the "Administrative Agent").
The Borrower and the Administrative Agent are parties
to a Loan Agreement dated as of June 7, 1994 (such Loan
Agreement, as modified and supplemented and as in effect
immediately prior to the Effective Date referred to below, the
"Existing Loan Agreement") governing loans (the "Existing Loans")
held by the Banks to the Borrower.
The Borrower wishes to amend and restate the Existing
Loan Agreement. Accordingly, the Borrower has requested and the
Banks and the Administrative Agent have agreed, effective as of
the Effective Date (as such term is defined below), that the
Existing Loan 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 Loan Agreement reads in its entirety as provided in this
Amended and Restated Loan Agreement (provided that (i) if the
Effective Date does not occur on or prior to December 31, 1994,
this Agreement shall terminate and be of no further force and
effect and the Existing Loan Agreement shall not be so amended
and restated, and (ii) the obligations of the Borrower referred
to in Section 10.03 hereof shall survive the termination of this
Agreement whether or not the Effective Date in fact occurs).
In addition, on the date hereof, the Banks have made
additional loans to the Borrower in an aggregate principal amount
equal to $31,000,000. The Borrower, the Banks and the
Administrative Agent desire that such additional loans shall also
be governed by this Agreement.
Section 1. Definitions; Accounting Matters and
Interpretation of Provisions.
1.01 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):
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 2 -
"Agreement" shall mean this Amended and Restated Loan
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 Loan Agreement
as a whole and not to any particular provision of this Amended
and Restated Loan 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 Loan Agreement (and not to the date of the Existing
Loan Agreement).
"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 have the meaning assigned
thereto in the Infinity Credit Agreement as in effect from time
to time.
"Assignment Agreement" shall mean the Assignment
Agreement dated as of December 22, 1994 between Infinity and the
Borrower, as the same shall be modified and supplemented and in
effect from time to time.
"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 1/2 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.
"Business Day" shall mean (a) any day on which
commercial banks are not authorized or required to close in New
York City and (b) if such day relates to a payment or prepayment
of principal of or interest on, or an Interest Period for, a
Eurodollar Loan or a notice by the Borrower with respect to any
such borrowing, payment, prepayment or Interest Period, or to a
Continuation of or a Conversion of or into a Eurodollar Loan or a
notice by the Borrower with respect to any such Continuation or
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 3 -
Conversion, such day shall also be a day on which dealings in
Dollar deposits are carried out in the London interbank market.
"Chase" shall mean The Chase Manhattan Bank (National
Association).
"Closing Date" shall mean the date on which the
Administrative Agent gives notice (such notice to be effective
upon dispatch) to the Borrower and the Banks that all of the
conditions precedent to the effectiveness of this Agreement set
forth in Section 6 hereof shall have been satisfied or waived by
such of the Banks as are required for such purpose.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Continue", "Continuation" and "Continued" shall refer
to the continuation pursuant to Section 2.05 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 2.05 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
sole discretion) of a Loan from one Applicable Lending Office to
another.
"Credit Documents" shall mean, collectively, this
Agreement, the Notes and the Assignment Agreement.
"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.
"Dollars" and "$" shall mean lawful money of the United
States of America.
"Effective Date" shall have the meaning assigned
thereto in the Infinity Credit Agreement.
"Eurodollar Base Rate" shall mean, with respect to any
Eurodollar Loan or any LIBOR Market 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 4 -
such Interest Period and in an amount equal to $5,000,000. If
any Reference Bank does not timely furnish such information for
determination of any Eurodollar Rate, the Administrative Agent
shall determine such rate on the basis of the information timely
furnished by the remaining Reference Banks.
"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.
"FCC" shall mean the Federal Communications Commission
or any successor thereto.
"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.
"Infinity" shall mean Infinity Broadcasting
Corporation, a Delaware corporation that owns, directly or
indirectly, all of the issued and outstanding capital stock of
the Borrower.
"Infinity Credit Agreement" shall mean the Second
Amended and Restated Credit Agreement dated as of December 22,
1994 between Infinity, the lenders party thereto, Chase, as
Administrative Agent, Bank of America Illinois, The Bank of
Montreal, The Bank of New York, Chemical Bank, Compagnie
Financiere de CIC et de l'Union Europeenne, The First National
Bank of Boston and National Westminster Bank USA, as Co-Agents,
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 5 -
and Chemical Bank, as Collateral Agent, as the same shall be
modified and supplemented and in effect from time to time.
"Interest Accrual Date" shall mean: (i) with respect
to any Loan outstanding on the Effective Date that was converted
from an Existing Loan to a Loan pursuant to Section 2.01 hereof,
the day immediately following the last day through which interest
has been paid on such Loan under the Existing Loan Agreement and
(ii) with respect to any Acquisition Loan made to Infinity which
Infinity has assigned to the Borrower hereof, the day immediately
following the last day through which interest has been paid on
such Loan by Infinity pursuant to Section 3.02 of the Infinity
Credit Agreement; provided that if on the Effective Date or the
effective date of any such assignment there shall be outstanding
or assigned 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 then outstanding or
so assigned, 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 Sections
3.02(d) and 3.02(e) 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 Class, with
the approval of all of the Banks) twelfth calendar month
thereafter, as the Borrower may select as provided in
Section 4.05 of the Infinity Credit Agreement, except that each
Interest Period which commences on the last Business Day of a
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 may commence before and end after any
Principal Payment Date unless, after giving effect thereto, the
aggregate principal amount of the Loans having Interest Periods
which end after such Principal Payment Date shall be equal to or
less than the aggregate principal amount of the Loans 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 6 -
otherwise be a shorter period, such Loan shall not be available
as a Eurodollar Loan hereunder.
"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 have the meaning assigned thereto in
Section 2.01 hereof.
"Majority Banks" shall have the meaning assigned
thereto in the Credit Agreement.
"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 Infinity and its
Subsidiaries taken as a whole, (b) the ability of the Borrower to
perform its obligations under the Credit Documents, (c) the
validity or enforceability of any of the Credit Documents, (d)
the rights and remedies of any of the Banks and the
Administrative Agent under any of the Credit Documents or (e) the
timely payment of the principal of or interest on the Loans or
other amounts payable in connection therewith.
"Notes" shall mean the promissory notes provided for by
Section 2.04 hereof.
"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).
"Post-Default Rate" shall mean, in respect of any
principal of or interest on any Loan or any other amount payable
by the Borrower under this Agreement or any Note that is not paid
when due (whether at stated maturity, by acceleration, by
optional or mandatory prepayment or otherwise), a rate per annum
during the period from and including the due date therefor to but
excluding the date such amount is paid in full equal to the
lesser of (a) 2% plus the Base Rate as in effect from time to
time plus the Applicable Margin for Base Rate Loans (provided
that, if the amount so in default is principal of a Eurodollar
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 7 -
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, 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 each Quarterly Date
on which a principal payment in respect of the Loans is required
to be made pursuant to Section 3.01 hereof.
"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.
"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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 8 -
monetary authority charged with the interpretation or
administration thereof.
"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.
"Senior Officer" shall mean the President or the Vice
President-Finance of the Borrower.
"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.
"Type" shall have the meaning assigned to such term in
Section 1.02 hereof.
1.02 Types of Loans. Loans hereunder are
distinguished by "Type". The "Type" of a Loan refers to whether
such Loan is a Base Rate Loan or a Eurodollar Loan, each of which
constitutes a Type.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 9 -
Section 2. Loans.
2.01 Conversion of Loans; Additional Loans. As of the
Closing Date, all of the Loans under and as defined in the
Existing Loan Agreement outstanding immediately prior to the
Effective Date and outstanding immediately prior to the Closing
Date and all additional loans assumed by the Borrower shall
constitute "Loans" hereunder (such Loans being herein
collectively called "Loans"). Subject to the terms and
conditions of this Agreement, the Borrower may (as provided in
Section 2.05 hereof) Convert Loans of one Type into Loans of the
other Type or Continue Loans of one Type as Loans of the same
Type.
2.02 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.
2.03 Remedies Independent. The amounts payable by the
Borrower at any time hereunder and under the Notes shall be a
separate and independent debt and each Bank shall be entitled to
protect and enforce its rights arising out of this Agreement and
the Notes, and it shall not be necessary for any other Bank or
the Administrative Agent to consent to, or be joined as an
additional party in, any proceedings for such purposes.
2.04 Notes. The Loans held by each Bank shall be
evidenced by a single promissory note (each, a "Note") of the
Borrower in substantially the form of Exhibit A hereto, dated the
Interest Accrual Date, payable to the order of such Bank in a
principal amount equal to the amount set forth opposite such
Bank's name on Schedule I hereto and otherwise duly completed.
2.05 Conversions or Continuations of Loans. Subject
to Sections 2,09. 2.10 and 4.04 of the Infinity Credit Agreement,
the Borrower shall have the right to Convert Loans of one Type
into Loans of the other Type or Continue Loans of one Type as
Loans of the same Type, at any time or from time to time.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans. The Borrower hereby promises
to pay to the Administrative Agent for account of each Bank the
principal of the Loans held by such Bank that are outstanding on
June 30, 1998 in 20 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 principal amount of the Loans
outstanding at the close of business on June 30, 1998 held by
such Bank times (ii) the percentage set forth below opposite the
related Principal Payment Date):
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 10 -
Principal Payment Date
Occurring In: Percentage
September 1998 6.250%
December 1998 6.250%
March 1999 3.750%
June 1999 3.750%
September 1999 3.750%
December 1999 3.750%
March 2000 4.375%
June 2000 4.375%
September 2000 4.375%
December 2000 4.375%
March 2001 5.000%
June 2001 5.000%
September 2001 5.000%
December 2001 5.000%
March 2002 5.000%
June 2002 5.000%
September 2002 5.000%
December 2002 5.000%
March 2003 7.500%
June 2003 7.500%
3.02 Interest.
(a) The Borrower 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
Borrower 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 Borrower
hereunder or under the Notes held by such Bank to or for account
of such Bank which shall not be paid in full when due (whether at
stated maturity, by acceleration, by mandatory or optional
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 11 -
prepayment or otherwise) for the period from and including the
due date thereof to but excluding the date the same is paid in
full.
(c) Accrued interest on each Loan 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, (iii) in the case of any Loan,
upon the payment or prepayment thereof (but only on the principal
amount so paid or prepaid), and (iv) upon the Conversion of such
Loan to a Syndicated Loan of the other Type (but only on the
principal amount so 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 interest rate
provided for herein or any change therein, the Administrative
Agent shall give notice thereof to the Banks and to the Borrower.
(d) Anything in this Agreement to the contrary
notwithstanding, with respect to each of the Loans made under the
Existing Loan Agreement prior to the Closing Date and outstanding
on the Closing Date as Eurodollar Loans: (i) the Interest Period
in effect for such Loan under the Existing Loan Agreement on the
Closing 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 Loan 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 Loan
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 Loan Agreement and, during that portion of such
Interest Period commencing on the Closing Date, the Applicable
Margin for such Loan provided for in Section 1.01 of this
Agreement.
(e) Anything in this Agreement to the contrary
notwithstanding, with respect to each of the Loans made under the
Infinity Credit Agreement prior to the Closing Date and
outstanding on the Closing Date as Eurodollar Loans: (i) the
Interest Period in effect for such Loan under the Infinity Credit
Agreement on the Closing 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 Infinity 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 Infinity Credit Agreement for such Loan for such
Interest Period plus, during the portion of such Interest Period
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 12 -
ending on the Closing Date, the Applicable Margin for such Loan
provided for in Section 1.01 of the Infinity Credit Agreement
and, during that portion of such Interest Period commencing on
the Closing Date, the Applicable Margin for such Loan provided
for in Section 1.01 of this Agreement.
3.03 Prepayments. Subject to Sections 3.03 and 4.04
of the Infinity Credit Agreement, the Borrower shall have the
right to prepay Loans hereunder at any time or from time to time,
provided that nothing in this Section 3.03 shall relieve the
Borrower from its obligations under Section 5 hereof.
Section 4. Payments; Pro Rata Treatment; Computations;
Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein or
therein, all payments of principal, interest and other amounts to
be made by the Borrower under this Agreement and the Notes, 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 Borrower
with it (with notice to the Borrower and Infinity).
(c) The Borrower shall, at the time it makes any
payment under this Agreement or any of its Notes, notify the
Administrative Agent (which shall so notify the intended
recipient(s) thereof) of the Loans or other amounts payable by
the Borrower hereunder to which such payment is to be applied in
which case such payment shall be so applied, subject to
Section 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 Section 4.02).
(d) Each payment received by the Administrative Agent
under this 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 13 -
Applicable Lending Office for the Loan or other obligation in
respect of which such payment is made.
(e) All payments by the Borrower hereunder shall be
made without deduction, set-off or counterclaim.
(f) If the due date of any payment under this
Agreement or any Note of the Borrower 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.
4.02 Pro Rata Treatment. Except to the extent
otherwise provided herein or in Section 4.02 of the Infinity
Credit Agreement:
(a) the Conversion and Continuation of Loans of a
particular type (other than Conversions provided for by
Section 5.04 hereof) shall be made pro rata among the Banks
holding Loans of such type according to the respective
principal amounts of their Loans, and Eurodollar Loans of a
particular type having the same Interest Period shall be
allocated pro rata among the Banks according to the amounts
of their respective Loans of such type;
(b) each payment or prepayment of principal of Loans
of a particular type shall be made to the Administrative
Agent for account of the Banks holding Loans of such type
pro rata in accordance with the respective unpaid principal
amounts of the Loans of such type held by such Banks; and
(c) each payment of interest on Loans of a particular
type shall be made to the Administrative Agent for account
of the Banks holding Loans of such type pro rata in
accordance with the amounts of interest on Loans of such
type then due and payable to such Banks.
4.03 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 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
shall be computed on the basis of a year of 360 days and actual
days elapsed.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 14 -
4.04 Non-Receipt of Funds by the Administrative Agent.
Unless the Administrative Agent shall have been notified by a
Bank or the 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 Borrower) a payment to the Administrative
Agent for account of one or more of the Banks hereunder (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 Borrower, 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.
Section 5. Yield Protection, Etc.
5.01 Additional Costs.
(a) The Borrower 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 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 15 -
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 of such extensions of credit
or liabilities).
If any Bank requests compensation from the Borrower under this
Section 5.01(a), the Borrower 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).
(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 Borrower
(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
Borrower 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 16 -
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
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 Borrower 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 Borrower for such compensation.
Each Bank will furnish to the Borrower 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 17 -
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.
5.02 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, 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; then the Administrative Agent shall
give the Borrower 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 Borrower 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 2.05
hereof.
5.03 Illegality. Notwithstanding any other provision
of this Agreement, 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 Borrower 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).
5.04 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
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 Borrower with a copy to the Administrative
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 18 -
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 Borrower 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.
5.05 Compensation. The Borrower 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 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. 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 19 -
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 Borrower 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.
5.06 U.S. Taxes.
(a) From time to time after the date hereof if
requested by the Borrower 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
Administrative Agent and the Borrower 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 and under the Notes. If such Bank
has transferred a beneficial interest in any part of the Notes
payable to it, it will forward to the Borrower or the
Administrative Agent any such statements or forms executed by the
Person to which it has transferred such beneficial interest.
(b) The Borrower 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 or under the Notes, if and to the extent
that the Borrower 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
Borrower 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
Borrower or the Administrative Agent shall so deduct or withhold
taxes from amounts payable hereunder, 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 20 -
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 Borrower and the Administrative Agent shall have
received forms or other documents satisfactory to them indicating
that payments hereunder or under any Note or not subject to
United States withholding tax or are subject to such tax at a
rate reduced by an applicable tax treaty, the Borrower or the
Administrative Agent may withhold taxes from such payments at the
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
Borrower 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); and
(ii) to indemnify the Borrower and the Administrative Agent and
any officers, directors, agents or employees of the Borrower 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 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 Borrower shall have consented in writing to such assignment,
no assignee of a Bank's interest in this 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 or under any
Note to any Bank (or any participant in a Loan held by a Bank) or
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 21 -
the Administrative Agent (i) the sum payable by the Borrower
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
Borrower shall make such deductions and (iii) the Borrower 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. 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 Borrower 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 Borrower 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 Borrower 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 Borrower
will pay the Bank such amount as will equal the amount of the
credit so disallowed, deferred or recaptured, provided that the
Borrower 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 Borrower
by such Bank in respect of such credit. In any such case, the
applicable Bank shall provide to the Borrower a statement in
reasonable detail setting forth the determination of such credit
utilized by such Bank.
5.07 Replacement or Prepayment of Certain Banks. The
Borrower 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 22 -
Administrative Agent) specifying the date for the consummation of
the assignment contemplated below require that such Bank assign
(in which case such Bank shall assign) as provided in Section
11.06(a) of the Infinity Credit Agreement all (but not less than
all) of its Loans to one or more other financial institutions
(which may be "Banks" hereunder) specified by the Borrower 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 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 Borrower 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 Borrower would be required to pay such
Bank if the Loans assigned by it were being prepaid by the
Borrower on the date of such consummation) and (y) all other
amounts then owing by the Borrower to or for the account of such
Bank hereunder (other than such principal of its Loans and such
interest).
Section 6. Conditions Precedent.
6.01 Effectiveness of Amendment and Restatement. The
effectiveness of the amendment and restatement of this Agreement
and the conversion of the Existing Loans to Loans hereunder shall
be subject to the receipt by the Administrative Agent of the
following, each of which shall be satisfactory to the
Administrative Agent in form and substance:
(a) Corporate Documents. A certificate from the
Secretary of State of the state in which the Borrower is
organized or has its principal place of business dated as of
a recent date as to the good standing (or its equivalent) of
and, with respect to the Borrower's state of organization,
the charter documents filed by the Borrower and copies,
certified by a Secretary or an Assistant Secretary of the
Borrower, of the charter and by-laws (or equivalent
documents) of the Borrower and of all corporate authority
for the Borrower (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 Credit Documents and each other
document to be delivered by the Borrower from time to time
in connection herewith and the Loans hereunder (and the
Administrative Agent and each Bank may conclusively rely on
such certificate until it receives notice in writing from
such Obligor to the contrary).
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 23 -
(b) Officer's Certificate. A certificate of a Senior
Officer of the Borrower dated the Closing Date to the effect
that after giving effect to the borrowing hereunder and to
the proposed use of the Loans (i) no Default shall have
occurred and be continuing; and (ii) the representations and
warranties made by the Borrower in Section 7 hereof shall be
true in all material respects on and as of the date of such
certificate 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).
(c) Opinion of Counsel to the Borrower and FCC Counsel
to the Borrower. An opinion of counsel (reasonably
acceptable to the Administrative Agent) to the Borrower,
dated the Closing Date, substantially in the form of
Exhibit B-1 hereto and an opinion of FCC counsel (reasonably
acceptable to the Administrative Agent) to the Borrower,
dated the Closing Date, substantially in the form of Exhibit
B-2 hereto (and the Borrower hereby instructs each such
counsel to deliver its opinion to the Banks and the
Administrative Agent).
(d) Notes. The Notes, duly completed and executed and
delivered.
(e) 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 Credit Documents and the other transactions
contemplated hereby have been obtained and are in full force
and effect.
(f) Fees and Expenses. Evidence that all amounts
payable by the Borrower on or prior to the date hereof in
connection with this Agreement, including without
limitation, under Section 10.03 hereof have been paid in
full (in the case of amounts payable under said Section
10.03, to the extent that invoices therefor have been
delivered to the Borrower).
(g) Other Documents. Such other documents as the
Administrative Agent or special New York counsel to Chase
may reasonably request.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 24 -
Section 7. Representations and Warranties. The
Borrower represents and warrants to the Banks and the
Administrative Agent that:
7.01 Corporate Existence. Each of the Borrower and
its 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.
7.02 Litigation. Except as set forth in Schedule II
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 Borrower)
threatened against the Borrower or any of its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect.
7.03 No Breach. None of the execution and delivery of
this Agreement and the Notes, 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 the Borrower, 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
Borrower or any of its 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 result in the creation or imposition of any
Lien upon any Property of the Borrower or any of its Subsidiaries
pursuant to the terms of any such agreement or instrument.
7.04 Action. The Borrower has all necessary corporate
power and authority to execute, deliver and perform its
obligations under each of the Credit Documents; the execution,
delivery and performance by the Borrower of each of the Credit
Documents have been duly authorized by all necessary corporate
action on its part; and each of this Agreement and the Notes has
been duly and validly executed and delivered by the Borrower and
constitute its legal, valid and binding obligation, enforceable
in accordance with its terms, except as such enforceability may
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 25 -
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
enforceability is considered in a proceeding in equity or at
law).
7.05 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 the Borrower of this Agreement or the Notes, for
the consummation of the transactions contemplated hereby or
thereby, or for the validity or enforceability thereof, except
for (a) 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, and (b) authorizations, approvals, consents,
filings or registrations (other than any of the foregoing to be
obtained from the FCC) which, if not made or obtained, could not
reasonably be expected to have a Material Adverse Effect.
7.06 Use of Loans. Neither the Borrower 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 will be used to buy or carry any
Margin Stock.
Section 8. Covenants of the Borrower. The Borrower
covenants and agrees with the Banks and the Administrative Agent
that, so long as any Loan is outstanding and until payment in
full of all amounts payable by the Borrower hereunder:
8.01 Financial Information. The Borrower will deliver
to each of the Banks promptly, from time to time, such
information regarding (a) the business, affairs, operations or
conditions (financial or otherwise) of the Borrower or any of its
Subsidiaries, (b) compliance by the Borrower with its obligations
contained herein and (c) the transactions contemplated hereby, in
each case as any Bank or the Administrative Agent may reasonably
request.
8.02 Existence, Etc. The Borrower will, and will
cause each of its Subsidiaries to: (a) preserve and maintain its
legal existence and all of its material rights, privileges and
franchises; (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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 26 -
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).
8.03 Use of Proceeds. The Borrower will use the
proceeds of the Loans solely for financing acquisitions of radio
stations (including net working capital of radio stations so
acquired) by the Borrower and/or any of its Restricted
Subsidiaries (in compliance with all applicable legal and
regulatory requirements).
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 Borrower shall default in the payment or
prepayment when due of any principal of or interest on any
Loan hereunder; or the Borrower 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
(b) Any representation, warranty or certification made
or deemed made in any Credit Document (or in any
modification or supplement thereto) by the Borrower, or any
certificate furnished to any Bank or any of the
Administrative Agent 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
(c) The Borrower or any of its Subsidiaries or
Infinity shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due;
or
(d) The Borrower or any of its Subsidiaries or
Infinity shall (i) apply for or consent to the appointment
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 27 -
of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial
part of its Property, (ii) make a general assignment for the
benefit of its creditors, (iii) commence a voluntary case
under the Bankruptcy Code (as now or hereafter in effect),
(iv) file a petition seeking to take advantage of any other
law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or readjustment of debts,
(v) fail to controvert in a timely and appropriate manner,
or acquiesce in writing to, any petition filed against it in
an involuntary case under the Bankruptcy Code, or (vi) take
any corporate action for the purpose of effecting any of the
foregoing; or
(e) A proceeding or case shall be commenced, without
the application or consent of the Borrower or any of its
Subsidiaries or Infinity, 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
Borrower or such Subsidiary or Infinity or of all or any
substantial part of its assets, or (iii) similar relief in
respect of the Borrower or such Subsidiary or Infinity 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 Borrower or such Subsidiary or Infinity
shall be entered in an involuntary case under the Bankruptcy
Code; or
(f) Any other "Event of Default" under and as defined
in the Infinity Credit Agreement shall have occurred and be
continuing;
THEREUPON: (i) in the case of an Event of Default other than an
Event of Default with respect to the Borrower or Infinity
referred to in clause (d) or (e) of this Section 9 the
Administrative Agent may and, upon request of the Majority Banks,
shall, by notice to the Company, declare the principal amount
then outstanding of, and the accrued interest on, the Loans and
all other amounts owing by the Borrower to the Administrative
Agent and the Banks under this Agreement 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 Borrower and (ii) in the case of the
occurrence of an Event of Default with respect to the Borrower or
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 28 -
Infinity referred to in clause (d) or (e) of this Section 9, the
principal amount then outstanding of, and the accrued interest
on, the Loans and all other amounts payable by the Borrower under
this Agreement 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 Borrower.
Section 10. Miscellaneous.
10.01 Waiver. No failure on the part of the
Administrative 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.
10.02 Notices. All notices and other communications
provided for herein (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, in the case of the Banks, at the "Address for
Notices" specified below its name on the signature pages of the
Infinity Credit Agreement; or, as to any party or any Bank, at
such other address as shall be designated by such party or Bank
in a notice to each other party and Bank. 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.
10.03 Expenses, Etc. The Borrower agrees to pay or
reimburse each of the Banks and the Administrative Agent for
paying: (a) all reasonable out-of-pocket costs and expenses of
the Administrative Agent (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 Credit Documents and the making of Loans
hereunder and (ii) any amendment, modification or waiver of any
of the terms of this Agreement or any of the other Credit
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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 29 -
collection proceedings relating thereto (including the
enforcement of this Section 10.03); 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 Credit 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 Credit
Document or any other document referred to herein or therein.
The Borrower hereby agrees (to the fullest extent
permitted by law) to indemnify the Administrative 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 the Administrative 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 Loans or
any actual or proposed use by the Borrower 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).
10.04 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
the Borrower may not assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of
the Banks and the Administrative Agent. No Bank may assign any
of its rights or obligations hereunder or with respect to any of
the Loans other than in accordance with Section 11.06 of the
Infinity Credit Agreement.
10.05 Survival. The obligations of the Borrower under
Sections 5.01, 5.05, 5.06 and 10.03 hereof shall survive the
repayment of the Loans. In addition, each representation and
warranty made, or deemed to be made 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 30 -
representation or warranty proving to have been false or
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.
10.06 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.
10.07 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.
10.08 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 Borrower
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
Borrower 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.
10.09 Waiver of Jury Trial. EACH OF THE BORROWER AND
THE ADMINISTRATIVE AGENT 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.
10.10 Appointment of Infinity as Agent. The Borrower
hereby irrevocably appoints Infinity as its agent for the purpose
of giving and receiving any and all notices and other
communications provided for herein and for all other purposes
hereunder and under the Notes. By its signature below, Infinity
hereby accepts such appointment.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 31 -
IN WITNESS WHEREOF, the parties hereto have caused this
Amended and Restated Loan Agreement to be duly executed as of the
day and year first above written.
INFINITY BROADCASTING CORPORATION
OF CALIFORNIA
By
Name: Farid Suleman
Title: Vice President - Finance
Address for Notices:
Infinity Broadcasting Corporation
of California
c/o Infinity Broadcasting Corporation
600 Madison Avenue
New York, New York 10022
Attention: Mel Karmazin
Telecopier No.: (212) 888-2959
Telephone No.: (212) 750-6400
APPOINTMENT AS AGENT
IS HEREBY ACCEPTED:
INFINITY BROADCASTING CORPORATION
By
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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 32 -
ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
By
Name:
Title:
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
with a copy to:
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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
SCHEDULE I
Banks and Loans
Name of Bank Amount of Loan
Chase Manhattan $ 4,671,428.57
Bank of America $ 3,892,857.14
Bank of Boston $ 3,892,857.14
Bank of Montreal $ 3,892,857.14
Chemical Bank $ 3,892,857.14
CIC-Union $ 3,892,857.14
National Westminster Bank $ 3,892,857.14
The Bank of New York $ 3,892,857.14
Bank of Nova Scotia $ 3,737,142.86
Banque Paribas $ 3,737,142.86
NationsBank $ 3,737,142.86
Society National Bank $ 3,737,142.86
Union Bank $ 3,737,142.86
ABN AMRO Bank $ 3,270,000.00
Corestates $ 3,270,000.00
First Union National Bank $ 3,270,000.00
Fuji Bank, Limited $ 3,270,000.00
Midland Bank plc $ 3,270,000.00
Mitsubishi Trust $ 3,270,000.00
Nippon Credit Bank $ 3,270,000.00
Shawmut Bank $ 3,270,000.00
Societe Generale $ 3,114,285.71
Sumitomo Trust $ 3,114,285.71
The Bank of California, N.A. $ 3,114,285.71
BNP $ 3,114,285.71
Dai-Ichi Kangyo Bank, Ltd. $ 2,335,714.29
Daiwa Bank $ 2,335,714.29
NBD Bank, N.A. $ 2,335,714.29
PNC Bank $ 2,335,714.29
Royal Bank of Scotland $ 2,335,714.29
The Long Term Credit Bank $ 2,335,714.29
The Sumitomo Bank, Ltd. $ 2,335,714.29
National Bank of Canada $ 1,868,571.43
Bank of Ireland $ 1,557,142.86
TOTAL $109,000,000.00
Schedule I to Subsidiary Loan Agreement
_______________________________________
</page>
<PAGE>
SCHEDULE II
Litigation
1. On November 20, 1990, the FCC issued a Notice of
Apparent Liability for Monetary Forfeiture ("NAL") with respect
to the broadcast by stations WXRK(FM), WYSP(FM), and WJFK-FM of
certain allegedly indecent material contained within "The Howard
Stern Show." On October 23, 1992, the FCC's Staff issued a
Memorandum Opinion and Order in which it determined that each of
the three stations was liable for a forfeiture in the amount of
$2,000 per station. Two Petitions for Reconsideration filed by
the Company were subsequently denied by the FCC, and the FCC's
action became administratively final in October, 1993. In
December, 1993, the Company notified the FCC that it did not
intend to remit the forfeiture and instead wished to avail itself
of United States District Court de novo review, which must, by
statute, be initiated by the government in the form of a
collection action. The government has taken no further action in
the matter.
2. On December 18, 1992, the FCC issued an NAL
advising the Company that it may be liable for a $600,000
monetary forfeiture for the broadcast by WXRK(FM), WYSP(FM), and
WJFK-FM of allegedly indecent material in several segments of
"The Howard Stern Show." The NAL stated that additional
enforcement action would result if additional violations of the
indecency regulations have occurred or should occur, and that
further action could include additional monetary forfeitures,
renewal of licenses for short (i.e., less than seven years) terms
or initiation of proceedings directed to the Company's
qualifications to remain an FCC licensee. On February 23, 1993,
the Company filed a Response with the FCC, vigorously asserting
that the cited material is not indecent and raising other
defenses. The matter is currently pending before the FCC.
3. On August 12, 1993, the FCC issued an NAL in the
amount of $500,000 against stations WJFK(AM) and WJFK-FM,
WXRK(FM), and WYSP(FM) relating to the broadcast of allegedly
indecent material within "The Howard Stern Show" on certain dates
in November and December, 1992 and January, 1993. The NAL stated
that if additional violations of FCC's indecency regulations
should occur, further enforcement action could include
proceedings focusing upon the Company's qualifications to be an
FCC licensee. On October 15, 1993, the Company filed a Response
which vigorously contested the allegations made in the NAL. The
matter is pending before the FCC.
4. On February 1, 1994, the FCC released an NAL in the
amount of $400,000 against stations WXRK(FM), WYSP(FM) and
WJFK(AM & FM) relating to the broadcast of allegedly indecent
material within "The Howard Stern Show" on four dates in August,
September and October, 1993. The Company's response was filed on
Schedule II to Subsidiary Loan Agreement
________________________________________
</page>
<PAGE>
April 4, 1994, and vigorously contested the allegations of the
NAL. The matter is pending before the FCC.
5. On May 20, 1994, the FCC released an NAL in the
amount of $200,000 against Stations WXRK(FM), WJFK(AM & FM) and
WYSP(FM) relating to the broadcast of allegedly indecent material
within "The Howard Stern Show" on two dates, one in December,
1993 and one in January, 1994. The Company's response to the NAL
was filed on July 18, 1994, and vigorously contested the
allegations of the NAL. The matter is pending before the FCC.
6. On August 11, 1992, Hemisphere Broadcasting
Corporation, a subsidiary of the Company and licensee of Station
WBCN, received an inquiry letter from the FCC with respect to a
complaint alleging that the Station had broadcast an indecent
joke on its morning drive time program. On October 1, 1992, the
Company responded to the FCC's inquiry letter, contesting the
allegations contained therein. The matter is currently pending
at the FCC.
7. On August 5, 1993, an organization known as
Americans for Responsible Television ("ART") filed a pleading
styled as a Formal Petition to Deny against the Company's
application for consent to assignment of the KRTH, Los Angeles,
license. The Company filed an Opposition to the Petition on
August 16, 1993, and ART filed a Reply on August 23, 1993. On
approximately October 21, 1993, Mr. Al Westcott filed a late-
filed Petition to Deny the KRTH assignment application. On
February 1, 1994, the FCC granted the KRTH application and denied
both Petitions, and the Company closed the KRTH acquisition on
February 15, 1994. On March 3, 1994, ART filed a Petition for
Reconsideration of the FCC's grant, and on April 13, 1994, the
Company filed an Opposition thereto. The FCC has not yet acted
on these filings. Accordingly, the FCC's grant of the KRTH has
not become a Final Order, and the application remains pending
under the FCC's rules.
8. On November 3, 1994, ART filed a Petition to Deny
against the Company's application for FCC consent to the
assignment of the KLUV-FM, Dallas, Texas license. The arguments
advanced by ART were similar to those set forth in its Petition
against the KRTH assignment. ART cites two complaints relating
to allegedly indecent broadcasts not previously considered by the
FCC, one filed in March, 1994 relating to broadcasts on two
occasions on the Company's Station WBCN in February and March,
1994, and another relating to a September, 1994 broadcast on
Station WRNO in New Orleans, a station not licensed to the
Company, which carries the Howard Stern Show. On November 17,
1994, the Company filed an Opposition to the Petition which
vigorously contested the allegations set forth in the Petition,
and ART filed a Reply on November 23, 1994. The matter is
currently pending at the FCC.
Schedule II to Subsidiary Loan Agreement
________________________________________
</page>
<PAGE>
EXHIBIT A
[Form of Note]
PROMISSORY NOTE
$_______________ _________ __, 19__
New York, New York
FOR VALUE RECEIVED, INFINITY BROADCASTING CORPORATION OF
CALIFORNIA, a Delaware corporation (the "Borrower"), 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 Borrower 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
or assumed by the Borrower, 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 Amended and
Restated Loan Agreement dated as of December 22, 1994 (as
amended, modified and supplemented and in effect from time to
time, the "Loan Agreement") between the Borrower 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.
Note
____
</page>
<PAGE>
- 2 -
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
INFINITY BROADCASTING CORPORATION
OF CALIFORNIA
By _________________________
Name:
Title:
Note
____
</page>
<PAGE>
- 3 -
SCHEDULE OF LOANS
This Note evidences Loans assumed, made, Continued or
Converted as contemplated by or under the within-described Loan
Agreement to the Borrower, 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
Note
____
</page>
<PAGE>
EXHIBIT B-1
[Form of Opinion of Counsel to the Borrower]
Opinion of Counsel to the Borrower
__________________________________
</page>
<PAGE>
EXHIBIT B-2
[Form of Opinion of FCC Counsel to the Borrower]
Opinion of Counsel to the Borrower
__________________________________
</page>
Opinion of Counsel to the Borrower
__________________________________
</page>
<PAGE>
EXECUTION COUNTERPART
===================================================================
SAGITTARIUS BROADCASTING CORPORATION
AMENDED AND RESTATED LOAN AGREEMENT
Dated as of December 22, 1994
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
===================================================================
</page>
<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 . . . . . . . . . . . . . . . . . . . 1
1.01 Certain Defined Terms. . . . . . . . . . . . . . . . . . . . 1
1.02 Types of Loans . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.01 Conversion of Loans. . . . . . . . . . . . . . . . . . . . . 8
2.02 Lending Offices. . . . . . . . . . . . . . . . . . . . . . . 8
2.03 Remedies Independent . . . . . . . . . . . . . . . . . . . . 9
2.04 Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.05 Conversions or Continuations of Loans. . . . . . . . . . . . 9
Section 3. Payments of Principal and Interest . . . . . . . . . . . . . 9
3.01 Repayment of Loans . . . . . . . . . . . . . . . . . . . . . 9
3.02 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.03 Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4. Payments; Pro Rata Treatment; Computations;
Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.02 Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . 12
4.03 Computations . . . . . . . . . . . . . . . . . . . . . . . . 13
4.04 Non-Receipt of Funds by the Administrative
Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5. Yield Protection, Etc. . . . . . . . . . . . . . . . . . . . 13
5.01 Additional Costs . . . . . . . . . . . . . . . . . . . . . . 13
5.02 Limitation on Eurodollar Loans . . . . . . . . . . . . . . . 16
5.03 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.04 Treatment of Affected Loans. . . . . . . . . . . . . . . . . 17
5.05 Compensation . . . . . . . . . . . . . . . . . . . . . . . . 17
5.06 U.S. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.07 Replacement or Prepayment of Certain Banks . . . . . . . . . 21
Section 6. Conditions Precedent . . . . . . . . . . . . . . . . . . . . 21
6.01 Effectiveness of Amendment and Restatement . . . . . . . . . 21
Section 7. Representations and Warranties . . . . . . . . . . . . . . . 23
7.01 Corporate Existence. . . . . . . . . . . . . . . . . . . . . 23
7.02 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.03 No Breach. . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.04 Action . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.05 Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.06 Use of Loans . . . . . . . . . . . . . . . . . . . . . . . . 24
(i)
</page>
<PAGE>
Section 8. Covenants of the Borrower. . . . . . . . . . . . . . . . . . 24
8.01 Financial Information. . . . . . . . . . . . . . . . . . . . 25
8.02 Existence, Etc.. . . . . . . . . . . . . . . . . . . . . . . 25
8.03 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . 25
Section 9. Events of Default. . . . . . . . . . . . . . . . . . . . . . 25
Section 10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 27
10.01 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.03 Expenses, Etc.. . . . . . . . . . . . . . . . . . . . . . . 28
10.04 Successors and Assigns. . . . . . . . . . . . . . . . . . . 28
10.05 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . 29
10.06 Captions. . . . . . . . . . . . . . . . . . . . . . . . . . 29
10.07 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 29
10.08 Governing Law; Submission to Jurisdiction . . . . . . . . . 29
10.09 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . 29
10.10 Appointment of Infinity as Agent. . . . . . . . . . . . . . 30
(ii)
</page>
<PAGE>
SCHEDULE I - Banks and Loans
SCHEDULE II - Litigation
EXHIBIT A - Form of Note
EXHIBIT B-1 - Form of Opinion of Counsel to the Borrower
EXHIBIT B-2 - Form of Opinion of FCC Counsel to the Borrower
(iii)
</page>
<PAGE>
AMENDED AND RESTATED LOAN AGREEMENT dated as of
December 22, 1994 between: SAGITTARIUS BROADCASTING CORPORATION,
a corporation duly organized and validly existing under the laws
of the State of New York (together with its successors and
assigns, the "Borrower"); and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), a national banking association, as Administrative
Agent under the Infinity Credit Agreement referred to below for
each of the lenders identified under the caption "BANKS" on
Schedule I hereto or which hereafter shall hold loans to the
Borrower hereunder (individually, a "Bank" and, collectively, the
"Banks") (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
The Borrower and the Administrative Agent are parties
to a Loan Agreement dated as of June 7, 1994 (such Loan
Agreement, as modified and supplemented and as in effect
immediately prior to the Effective Date referred to below, the
"Existing Loan Agreement") governing loans (the "Existing Loans")
held by the Banks to the Borrower.
The Borrower wishes to amend and restate the Existing
Loan Agreement. Accordingly, the Borrower has requested and the
Banks and the Administrative Agent have agreed, effective as of
the Effective Date (as such term is defined below), that the
Existing Loan 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 Loan Agreement reads in its entirety as provided in this
Amended and Restated Loan Agreement (provided that (i) if the
Effective Date does not occur on or prior to December 31, 1994,
this Agreement shall terminate and be of no further force and
effect and the Existing Loan Agreement shall not be so amended
and restated, and (ii) the obligations of the Borrower referred
to in Section 10.03 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.
1.01 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):
"Agreement" shall mean this Amended and Restated Loan
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 Loan Agreement
as a whole and not to any particular provision of this Amended
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 2 -
and Restated Loan 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 Loan Agreement (and not to the date of the Existing
Loan Agreement).
"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 have the meaning assigned
thereto in the Infinity Credit Agreement as in effect from time
to time.
"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 1/2 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.
"Business Day" shall mean (a) any day on which
commercial banks are not authorized or required to close in New
York City and (b) if such day relates to a payment or prepayment
of principal of or interest on, or an Interest Period for, a
Eurodollar Loan or a notice by the Borrower with respect to any
such borrowing, payment, prepayment or Interest Period, or to a
Continuation of or a Conversion of or into a Eurodollar Loan or a
notice by the Borrower with respect to any such Continuation or
Conversion, such day shall also be a day on which dealings in
Dollar deposits are carried out in the London interbank market.
"Chase" shall mean The Chase Manhattan Bank (National
Association).
"Closing Date" shall mean the date on which the
Administrative Agent gives notice (such notice to be effective
upon dispatch) to the Borrower and the Banks that all of the
conditions precedent to the effectiveness of this Agreement set
forth in Section 6 hereof shall have been satisfied or waived by
such of the Banks as are required for such purpose.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 3 -
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Continue", "Continuation" and "Continued" shall refer
to the continuation pursuant to Section 2.05 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 2.05 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
sole discretion) of a Loan from one Applicable Lending Office to
another.
"Credit Documents" shall mean, collectively, this
Agreement and the Notes.
"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.
"Dollars" and "$" shall mean lawful money of the United
States of America.
"Effective Date" shall have the meaning assigned
thereto in the Infinity Credit Agreement.
"Eurodollar Base Rate" shall mean, with respect to any
Eurodollar Loan or any LIBOR Market 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. If
any Reference Bank does not timely furnish such information for
determination of any Eurodollar Rate, the Administrative Agent
shall determine such rate on the basis of the information timely
furnished by the remaining Reference Banks.
"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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 4 -
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.
"FCC" shall mean the Federal Communications Commission
or any successor thereto.
"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.
"Infinity" shall mean Infinity Broadcasting
Corporation, a Delaware corporation that owns, directly or
indirectly, all of the issued and outstanding capital stock of
the Borrower.
"Infinity Credit Agreement" shall mean the Second
Amended and Restated Credit Agreement dated as of December 22,
1994 between Infinity, the lenders party thereto, Chase, as
Administrative Agent, Bank of America Illinois, The Bank of
Montreal, The Bank of New York, Chemical Bank, Compagnie
Financiere de CIC et de l'Union Europeenne, The First National
Bank of Boston and National Westminster Bank USA, as Co-Agents,
and Chemical Bank, as Collateral Agent, as the same shall be
modified and supplemented and in effect from time to time.
"Interest Accrual Date" shall mean (i) with respect to
any Loan outstanding on the Effective Date that was converted
from an Existing Loan to a Loan pursuant to Section 2.01 hereof,
the day immediately following the last day through which interest
has been paid on such Loan under the Existing Loan Agreement;
provided that if on the Effective Date or the effective date of
any such assignment there shall be outstanding or assigned both
Base Rate Loans and Eurodollar Loans and/or Eurodollar Loans
having different Interest Periods, the "Interest Accrual Date"
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 5 -
with respect to all such Loans then outstanding or so assigned,
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 Class, with the
approval of all of the Banks) twelfth calendar month thereafter,
as the Borrower may select as provided in Section 4.05 of the
Infinity Credit Agreement, except that each Interest Period which
commences on the last Business Day of a 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 may commence before and end after any Principal Payment Date
unless, after giving effect thereto, the aggregate principal
amount of the Loans having Interest Periods which end after such
Principal Payment Date shall be equal to or less than the
aggregate principal amount of the Loans 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.
"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 have the meaning assigned thereto in
Section 2.01 hereof.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 6 -
"Majority Banks" shall have the meaning assigned
thereto in the Credit Agreement.
"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 Infinity and its
Subsidiaries taken as a whole, (b) the ability of the Borrower to
perform its obligations under the Credit Documents, (c) the
validity or enforceability of any of the Credit Documents, (d)
the rights and remedies of any of the Banks and the
Administrative Agent under any of the Credit Documents or (e) the
timely payment of the principal of or interest on the Loans or
other amounts payable in connection therewith.
"Notes" shall mean the promissory notes provided for by
Section 2.04 hereof.
"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).
"Post-Default Rate" shall mean, in respect of any
principal of or interest on any Loan or any other amount payable
by the Borrower under this Agreement or any Note that is not paid
when due (whether at stated maturity, by acceleration, by
optional or mandatory prepayment or otherwise), a rate per annum
during the period from and including the due date therefor to but
excluding the date such amount is paid in full equal to the
lesser of (a) 2% plus the Base Rate as in effect from time to
time plus the Applicable Margin for Base Rate Loans (provided
that, if the amount so in default 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, 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.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 7 -
"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 each Quarterly Date
on which a principal payment in respect of the Loans is required
to be made pursuant to Section 3.01 hereof.
"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.
"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.
"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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 8 -
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.
"Senior Officer" shall mean the President or the Vice
President-Finance of the Borrower.
"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.
"Type" shall have the meaning assigned to such term in
Section 1.02 hereof.
1.02 Types of Loans. Loans hereunder are
distinguished by "Type". The "Type" of a Loan refers to whether
such Loan is a Base Rate Loan or a Eurodollar Loan, each of which
constitutes a Type.
Section 2. Loans.
2.01 Conversion of Loans. As of the Closing Date, all
of the Loans under and as defined in the Existing Loan Agreement
outstanding immediately prior to the Effective Date and
outstanding immediately prior to the Closing Date shall
constitute "Loans" hereunder (such Loans being herein
collectively called "Loans"). Subject to the terms and
conditions of this Agreement, the Borrower may (as provided in
Section 2.05 hereof) Convert Loans of one Type into Loans of the
other Type or Continue Loans of one Type as Loans of the same
Type.
2.02 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.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 9 -
2.03 Remedies Independent. The amounts payable by the
Borrower at any time hereunder and under the Notes shall be a
separate and independent debt and each Bank shall be entitled to
protect and enforce its rights arising out of this Agreement and
the Notes, and it shall not be necessary for any other Bank or
the Administrative Agent to consent to, or be joined as an
additional party in, any proceedings for such purposes.
2.04 Notes. The Loans held by each Bank shall be
evidenced by a single promissory note (each, a "Note") of the
Borrower in substantially the form of Exhibit A hereto, dated the
Interest Accrual Date, payable to the order of such Bank in a
principal amount equal to the amount set forth opposite such
Bank's name on Schedule I hereto and otherwise duly completed.
2.05 Conversions or Continuations of Loans. Subject
to Sections 2,09. 2.10 and 4.04 of the Infinity Credit Agreement,
the Borrower shall have the right to Convert Loans of one Type
into Loans of the other Type or Continue Loans of one Type as
Loans of the same Type, at any time or from time to time.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans. The Borrower hereby promises
to pay to the Administrative Agent for account of each Bank the
principal of the Loans held by such Bank that are outstanding on
June 30, 1998 in 20 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 principal amount of the Loans
outstanding at the close of business on June 30, 1998 held by
such Bank times (ii) the percentage set forth below opposite the
related Principal Payment Date):
Principal Payment Date
Occurring In: Percentage
September 1998 6.250%
December 1998 6.250%
March 1999 3.750%
June 1999 3.750%
September 1999 3.750%
December 1999 3.750%
March 2000 4.375%
June 2000 4.375%
September 2000 4.375%
December 2000 4.375%
March 2001 5.000%
June 2001 5.000%
September 2001 5.000%
December 2001 5.000%
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 10 -
March 2002 5.000%
June 2002 5.000%
September 2002 5.000%
December 2002 5.000%
March 2003 7.500%
June 2003 7.500%
3.02 Interest.
(a) The Borrower 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
Borrower 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 Borrower
hereunder or under the Notes held by such Bank to or for account
of such Bank 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.
(c) Accrued interest on each Loan 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, (iii) in the case of any Loan,
upon the payment or prepayment thereof (but only on the principal
amount so paid or prepaid), and (iv) upon the Conversion of such
Loan to a Loan of the other Type (but only on the principal
amount so 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 interest rate provided
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 11 -
for herein or any change therein, the Administrative Agent shall
give notice thereof to the Banks and to the Borrower.
(d) Anything in this Agreement to the contrary
notwithstanding, with respect to each of the Loans made under the
Existing Loan Agreement prior to the Closing Date and outstanding
on the Closing Date as Eurodollar Loans: (i) the Interest Period
in effect for such Loan under the Existing Loan Agreement on the
Closing 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 Loan 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 Loan
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 Loan Agreement and, during that portion of such
Interest Period commencing on the Closing Date, the Applicable
Margin for such Loan provided for in Section 1.01 of this
Agreement.
3.03 Prepayments. Subject to Sections 3.03 and 4.04
of the Infinity Credit Agreement, the Borrower shall have the
right to prepay Loans hereunder at any time or from time to time,
provided that nothing in this Section 3.03 shall relieve the
Borrower from its obligations under Section 5 hereof.
Section 4. Payments; Pro Rata Treatment; Computations;
Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein or
therein, all payments of principal, interest and other amounts to
be made by the Borrower under this Agreement and the Notes, 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 Borrower
with it (with notice to the Borrower and Infinity).
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 12 -
(c) The Borrower shall, at the time it makes any
payment under this Agreement or any of its Notes, notify the
Administrative Agent (which shall so notify the intended
recipient(s) thereof) of the Loans or other amounts payable by
the Borrower hereunder to which such payment is to be applied in
which case such payment shall be so applied, subject to
Section 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 Section 4.02).
(d) Each payment received by the Administrative Agent
under this 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 Borrower hereunder shall be
made without deduction, set-off or counterclaim.
(f) If the due date of any payment under this
Agreement or any Note of the Borrower 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.
4.02 Pro Rata Treatment. Except to the extent
otherwise provided herein or in Section 4.02 of the Infinity
Credit Agreement:
(a) the Conversion and Continuation of Loans of a
particular type (other than Conversions provided for by
Section 5.04 hereof) shall be made pro rata among the Banks
holding Loans of such type according to the respective
principal amounts of their Loans, and Eurodollar Loans of a
particular type having the same Interest Period shall be
allocated pro rata among the Banks according to the amounts
of their respective Loans of such type;
(b) each payment or prepayment of principal of Loans
of a particular type shall be made to the Administrative
Agent for account of the Banks holding Loans of such type
pro rata in accordance with the respective unpaid principal
amounts of the Loans of such type held by such Banks; and
(c) each payment of interest on Loans of a particular
type shall be made to the Administrative Agent for account
of the Banks holding Loans of such type pro rata in
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 13 -
accordance with the amounts of interest on Loans of such
type then due and payable to such Banks.
4.03 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 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
shall be computed on the basis of a year of 360 days and actual
days elapsed.
4.04 Non-Receipt of Funds by the Administrative Agent.
Unless the Administrative Agent shall have been notified by a
Bank or the 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 Borrower) a payment to the Administrative
Agent for account of one or more of the Banks hereunder (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 Borrower, 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.
Section 5. Yield Protection, Etc.
5.01 Additional Costs.
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 14 -
(a) The Borrower 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 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 of such extensions of credit
or liabilities).
If any Bank requests compensation from the Borrower under this
Section 5.01(a), the Borrower 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).
(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 Borrower
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 15 -
(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
Borrower 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
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 Borrower 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 16 -
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 Borrower for such compensation.
Each Bank will furnish to the Borrower 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.
5.02 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, 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; then the Administrative Agent shall
give the Borrower 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 Borrower 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 2.05
hereof.
5.03 Illegality. Notwithstanding any other provision
of this Agreement, 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 Borrower thereof (with a copy to the Administrative
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 17 -
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).
5.04 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
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 Borrower 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 Borrower 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.
5.05 Compensation. The Borrower 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 18 -
Bank) to compensate it for any loss, cost or expense which such
Bank determines is attributable to 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. 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 Borrower 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.
5.06 U.S. Taxes.
(a) From time to time after the date hereof if
requested by the Borrower 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
Administrative Agent and the Borrower 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 and under the Notes. If such Bank
has transferred a beneficial interest in any part of the Notes
payable to it, it will forward to the Borrower or the
Administrative Agent any such statements or forms executed by the
Person to which it has transferred such beneficial interest.
(b) The Borrower and the Administrative Agent shall be
entitled to deduct and withhold any and all present or future
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 19 -
taxes or withholdings, and all liabilities with respect thereto,
from payments hereunder or under the Notes, if and to the extent
that the Borrower 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
Borrower 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
Borrower or the Administrative Agent shall so deduct or withhold
taxes from amounts payable hereunder, 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 Borrower and the Administrative Agent shall have
received forms or other documents satisfactory to them indicating
that payments hereunder or under any Note or not subject to
United States withholding tax or are subject to such tax at a
rate reduced by an applicable tax treaty, the Borrower or the
Administrative Agent may withhold taxes from such payments at the
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
Borrower 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); and
(ii) to indemnify the Borrower and the Administrative Agent and
any officers, directors, agents or employees of the Borrower 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).
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 20 -
(d) Each assignee of a Bank's interest in this
Agreement 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 Borrower shall have consented in writing to such assignment,
no assignee of a Bank's interest in this 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 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 Borrower
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
Borrower shall make such deductions and (iii) the Borrower 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. 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 Borrower 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 Borrower 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 Borrower 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
Subsidiary Loan Agreement
_________________________
</page>
<PAGE>
- 21 -
subject to withholding taxes. In the event the credit is later
disallowed, deferred or recaptured for any reason, the Borrower
will pay the Bank such amount as will equal the amount of the
credit so disallowed, deferred or recaptured, provided that the
Borrower 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 Borrower
by such Bank in respect of such credit. In any such case, the
applicable Bank shall provide to the Borrower a statement in
reasonable detail setting forth the determination of such credit
utilized by such Bank.
5.07 Replacement or Prepayment of Certain Banks. The
Borrower 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 below require that such Bank assign
(in which case such Bank shall assign) as provided in Section
11.06(a) of the Infinity Credit Agreement all (but not less than
all) of its Loans to one or more other financial institutions
(which may be "Banks" hereunder) specified by the Borrower 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 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 Borrower 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 Borrower would be required to pay such
Bank if the Loans assigned by it were being prepaid by the
Borrower on the date of such consummation) and (y) all other
amounts then owing by the Borrower to or for the account of such
Bank hereunder (other than such principal of its Loans and such
interest).
Section 6. Conditions Precedent.
6.01 Effectiveness of Amendment and Restatement. The
effectiveness of the amendment and restatement of this Agreement
and the conversion of the Existing Loans to Loans hereunder shall
be subject to the receipt by the Administrative Agent of the
following, each of which shall be satisfactory to the
Administrative Agent in form and substance:
(a) Corporate Documents. A certificate from the
Secretary of State of the state in which the Borrower is
organized or has its principal place of business dated as of
Subsidiary Loan Agreement
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a recent date as to the good standing (or its equivalent) of
and, with respect to the Borrower's state of organization,
the charter documents filed by the Borrower and copies,
certified by a Secretary or an Assistant Secretary of the
Borrower, of the charter and by-laws (or equivalent
documents) of the Borrower and of all corporate authority
for the Borrower (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 Credit Documents and each other
document to be delivered by the Borrower from time to time
in connection herewith and the Loans hereunder (and the
Administrative Agent and each Bank may conclusively rely on
such certificate until it receives notice in writing from
such Obligor to the contrary).
(b) Officer's Certificate. A certificate of a Senior
Officer of the Borrower dated the Closing Date to the effect
that after giving effect to the borrowing hereunder and to
the proposed use of the Loans (i) no Default shall have
occurred and be continuing; and (ii) the representations and
warranties made by the Borrower in Section 7 hereof shall be
true in all material respects on and as of the date of such
certificate 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).
(c) Opinion of Counsel to the Borrower and FCC Counsel
to the Borrower. An opinion of counsel (reasonably
acceptable to the Administrative Agent) to the Borrower,
dated the Closing Date, substantially in the form of
Exhibit B-1 hereto and an opinion of FCC counsel (reasonably
acceptable to the Administrative Agent) to the Borrower,
dated the Closing Date, substantially in the form of Exhibit
B-2 hereto (and the Borrower hereby instructs each such
counsel to deliver its opinion to the Banks and the
Administrative Agent).
(d) Notes. The Notes, duly completed and executed and
delivered.
(e) 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 Credit Documents and the other transactions
contemplated hereby have been obtained and are in full force
and effect.
Subsidiary Loan Agreement
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(f) Fees and Expenses. Evidence that all amounts
payable by the Borrower on or prior to the date hereof in
connection with this Agreement, including without
limitation, under Section 10.03 hereof have been paid in
full (in the case of amounts payable under said Section
10.03, to the extent that invoices therefor have been
delivered to the Borrower).
(g) Other Documents. Such other documents as the
Administrative Agent or special New York counsel to Chase
may reasonably request.
Section 7. Representations and Warranties. The
Borrower represents and warrants to the Banks and the
Administrative Agent that:
7.01 Corporate Existence. Each of the Borrower and
its 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.
7.02 Litigation. Except as set forth in Schedule II
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 Borrower)
threatened against the Borrower or any of its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect.
7.03 No Breach. None of the execution and delivery of
this Agreement and the Notes, 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 the Borrower, 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
Borrower or any of its 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
Subsidiary Loan Agreement
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Adverse Effect or result in the creation or imposition of any
Lien upon any Property of the Borrower or any of its Subsidiaries
pursuant to the terms of any such agreement or instrument.
7.04 Action. The Borrower has all necessary corporate
power and authority to execute, deliver and perform its
obligations under each of the Credit Documents; the execution,
delivery and performance by the Borrower of each of the Credit
Documents have been duly authorized by all necessary corporate
action on its part; and each of this Agreement and the Notes has
been duly and validly executed and delivered by the Borrower and
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
enforceability is considered in a proceeding in equity or at
law).
7.05 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 the Borrower of this Agreement or the Notes, for
the consummation of the transactions contemplated hereby or
thereby, or for the validity or enforceability thereof, except
for (a) 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, and (b) authorizations, approvals, consents,
filings or registrations (other than any of the foregoing to be
obtained from the FCC) which, if not made or obtained, could not
reasonably be expected to have a Material Adverse Effect.
7.06 Use of Loans. Neither the Borrower 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 will be used to buy or carry any
Margin Stock.
Section 8. Covenants of the Borrower. The Borrower
covenants and agrees with the Banks and the Administrative Agent
that, so long as any Loan is outstanding and until payment in
full of all amounts payable by the Borrower hereunder:
Subsidiary Loan Agreement
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8.01 Financial Information. The Borrower will deliver
to each of the Banks promptly, from time to time, such
information regarding (a) the business, affairs, operations or
conditions (financial or otherwise) of the Borrower or any of its
Subsidiaries, (b) compliance by the Borrower with its obligations
contained herein and (c) the transactions contemplated hereby, in
each case as any Bank or the Administrative Agent may reasonably
request.
8.02 Existence, Etc. The Borrower will, and will
cause each of its Subsidiaries to: (a) preserve and maintain its
legal existence and all of its material rights, privileges and
franchises; (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).
8.03 Use of Proceeds. The Borrower will use the
proceeds of the Loans solely for financing acquisitions of radio
stations (including net working capital of radio stations so
acquired) by the Borrower and/or any of its Restricted
Subsidiaries (in compliance with all applicable legal and
regulatory requirements).
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 Borrower shall default in the payment or
prepayment when due of any principal of or interest on any
Loan hereunder; or the Borrower 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
Subsidiary Loan Agreement
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(b) Any representation, warranty or certification made
or deemed made in any Credit Document (or in any
modification or supplement thereto) by the Borrower, or any
certificate furnished to any Bank or any of the
Administrative Agent 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
(c) The Borrower or any of its Subsidiaries or
Infinity shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due;
or
(d) The Borrower or any of its Subsidiaries or
Infinity 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 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
(e) A proceeding or case shall be commenced, without
the application or consent of the Borrower or any of its
Subsidiaries or Infinity, 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
Borrower or such Subsidiary or Infinity or of all or any
substantial part of its assets, or (iii) similar relief in
respect of the Borrower or such Subsidiary or Infinity 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 Borrower or such Subsidiary or Infinity
shall be entered in an involuntary case under the Bankruptcy
Code; or
Subsidiary Loan Agreement
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(f) Any other "Event of Default" under and as defined
in the Infinity Credit Agreement shall have occurred and be
continuing;
THEREUPON: (i) in the case of an Event of Default other than an
Event of Default with respect to the Borrower or Infinity
referred to in clause (d) or (e) of this Section 9 the
Administrative Agent may and, upon request of the Majority Banks,
shall, by notice to the Company, declare the principal amount
then outstanding of, and the accrued interest on, the Loans and
all other amounts owing by the Borrower to the Administrative
Agent and the Banks under this Agreement 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 Borrower and (ii) in the case of the
occurrence of an Event of Default with respect to the Borrower or
Infinity referred to in clause (d) or (e) of this Section 9, the
principal amount then outstanding of, and the accrued interest
on, the Loans and all other amounts payable by the Borrower under
this Agreement 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 Borrower.
Section 10. Miscellaneous.
10.01 Waiver. No failure on the part of the
Administrative 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.
10.02 Notices. All notices and other communications
provided for herein (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, in the case of the Banks, at the "Address for
Notices" specified below its name on the signature pages of the
Infinity Credit Agreement; or, as to any party or any Bank, at
such other address as shall be designated by such party or Bank
in a notice to each other party and Bank. Except as otherwise
provided in this Agreement, all such communications shall be
Subsidiary Loan Agreement
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<PAGE>
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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.
10.03 Expenses, Etc. The Borrower agrees to pay or
reimburse each of the Banks and the Administrative Agent for
paying: (a) all reasonable out-of-pocket costs and expenses of
the Administrative Agent (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 Credit Documents and the making of Loans
hereunder and (ii) any amendment, modification or waiver of any
of the terms of this Agreement or any of the other Credit
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 10.03); 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 Credit 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 Credit
Document or any other document referred to herein or therein.
The Borrower hereby agrees (to the fullest extent
permitted by law) to indemnify the Administrative 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 the Administrative 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 Loans or
any actual or proposed use by the Borrower 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).
10.04 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
Subsidiary Loan Agreement
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<PAGE>
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the Borrower may not assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of
the Banks and the Administrative Agent. No Bank may assign any
of its rights or obligations hereunder or with respect to any of
the Loans other than in accordance with Section 11.06 of the
Infinity Credit Agreement.
10.05 Survival. The obligations of the Borrower under
Sections 5.01, 5.05, 5.06 and 10.03 hereof shall survive the
repayment of the Loans. In addition, each representation and
warranty made, or deemed to be made 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
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.
10.06 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.
10.07 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.
10.08 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 Borrower
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
Borrower 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.
10.09 Waiver of Jury Trial. EACH OF THE BORROWER AND
THE ADMINISTRATIVE AGENT 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.
Subsidiary Loan Agreement
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10.10 Appointment of Infinity as Agent. The Borrower
hereby irrevocably appoints Infinity as its agent for the purpose
of giving and receiving any and all notices and other
communications provided for herein and for all other purposes
hereunder and under the Notes. By its signature below, Infinity
hereby accepts such appointment.
Subsidiary Loan Agreement
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IN WITNESS WHEREOF, the parties hereto have caused this
Amended and Restated Loan Agreement to be duly executed as of the
day and year first above written.
SAGITTARIUS BROADCASTING
CORPORATION
By
Name: Farid Suleman
Title: Vice President - Finance
Address for Notices:
Sagittarius Broadcasting Corporation
c/o Infinity Broadcasting Corporation
600 Madison Avenue
New York, New York 10022
Attention: Mel Karmazin
Telecopier No.: (212) 888-2959
Telephone No.: (212) 750-6400
APPOINTMENT AS AGENT
IS HEREBY ACCEPTED:
INFINITY BROADCASTING CORPORATION
By
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
Subsidiary Loan Agreement
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ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
By
Name:
Title:
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
with a copy to:
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
Subsidiary Loan Agreement
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</page>
<PAGE>
SCHEDULE I
Banks and Loans
Name of Bank Amount of Loan
Chase Manhattan $ 2,346,428.57
Bank of America $ 1,955,357.14
Bank of Boston $ 1,955,357.14
Bank of Montreal $ 1,955,357.14
Chemical Bank $ 1,955,357.14
CIC-Union $ 1,955,357.14
National Westminster Bank $ 1,955,357.14
The Bank of New York $ 1,955,357.14
Bank of Nova Scotia $ 1,877,142.86
Banque Paribas $ 1,877,142.86
NationsBank $ 1,877,142.86
Society National Bank $ 1,877,142.86
Union Bank $ 1,877,142.86
ABN AMRO Bank $ 1,642,500.00
Corestates $ 1,642,500.00
First Union National Bank $ 1,642,500.00
Fuji Bank, Limited $ 1,642,500.00
Midland Bank plc $ 1,642,500.00
Mitsubishi Trust $ 1,642,500.00
Nippon Credit Bank $ 1,642,500.00
Shawmut Bank $ 1,642,500.00
Societe Generale $ 1,564,285.71
Sumitomo Trust $ 1,564,285.71
The Bank of California, N.A. $ 1,564,285.71
BNP $ 1,564,285.71
Dai-Ichi Kangyo Bank, Ltd. $ 1,173,214.29
Daiwa Bank $ 1,173,214.29
NBD Bank, N.A. $ 1,173,214.29
PNC Bank $ 1,173,214.29
Royal Bank of Scotland $ 1,173,214.29
The Long Term Credit Bank $ 1,173,214.29
The Sumitomo Bank, Ltd. $ 1,173,214.29
National Bank of Canada $ 938,571.43
Bank of Ireland $ 782,142.88
TOTAL $54,750,000.00
Schedule I to Subsidiary Loan Agreement
_______________________________________
</page>
<PAGE>
SCHEDULE II
Litigation
1. On November 20, 1990, the FCC issued a Notice of
Apparent Liability for Monetary Forfeiture ("NAL") with respect
to the broadcast by stations WXRK(FM), WYSP(FM), and WJFK-FM of
certain allegedly indecent material contained within "The Howard
Stern Show." On October 23, 1992, the FCC's Staff issued a
Memorandum Opinion and Order in which it determined that each of
the three stations was liable for a forfeiture in the amount of
$2,000 per station. Two Petitions for Reconsideration filed by
the Company were subsequently denied by the FCC, and the FCC's
action became administratively final in October, 1993. In
December, 1993, the Company notified the FCC that it did not
intend to remit the forfeiture and instead wished to avail itself
of United States District Court de novo review, which must, by
statute, be initiated by the government in the form of a
collection action. The government has taken no further action in
the matter.
2. On December 18, 1992, the FCC issued an NAL
advising the Company that it may be liable for a $600,000
monetary forfeiture for the broadcast by WXRK(FM), WYSP(FM), and
WJFK-FM of allegedly indecent material in several segments of
"The Howard Stern Show." The NAL stated that additional
enforcement action would result if additional violations of the
indecency regulations have occurred or should occur, and that
further action could include additional monetary forfeitures,
renewal of licenses for short (i.e., less than seven years) terms
or initiation of proceedings directed to the Company's
qualifications to remain an FCC licensee. On February 23, 1993,
the Company filed a Response with the FCC, vigorously asserting
that the cited material is not indecent and raising other
defenses. The matter is currently pending before the FCC.
3. On August 12, 1993, the FCC issued an NAL in the
amount of $500,000 against stations WJFK(AM) and WJFK-FM,
WXRK(FM), and WYSP(FM) relating to the broadcast of allegedly
indecent material within "The Howard Stern Show" on certain dates
in November and December, 1992 and January, 1993. The NAL stated
that if additional violations of FCC's indecency regulations
should occur, further enforcement action could include
proceedings focusing upon the Company's qualifications to be an
FCC licensee. On October 15, 1993, the Company filed a Response
which vigorously contested the allegations made in the NAL. The
matter is pending before the FCC.
4. On February 1, 1994, the FCC released an NAL in the
amount of $400,000 against stations WXRK(FM), WYSP(FM) and
WJFK(AM & FM) relating to the broadcast of allegedly indecent
material within "The Howard Stern Show" on four dates in August,
September and October, 1993. The Company's response was filed on
Schedule II to Subsidiary Loan Agreement
_______________________________________
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<PAGE>
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April 4, 1994, and vigorously contested the allegations of the
NAL. The matter is pending before the FCC.
5. On May 20, 1994, the FCC released an NAL in the
amount of $200,000 against Stations WXRK(FM), WJFK(AM & FM) and
WYSP(FM) relating to the broadcast of allegedly indecent material
within "The Howard Stern Show" on two dates, one in December,
1993 and one in January, 1994. The Company's response to the NAL
was filed on July 18, 1994, and vigorously contested the
allegations of the NAL. The matter is pending before the FCC.
6. On August 11, 1992, Hemisphere Broadcasting
Corporation, a subsidiary of the Company and licensee of Station
WBCN, received an inquiry letter from the FCC with respect to a
complaint alleging that the Station had broadcast an indecent
joke on its morning drive time program. On October 1, 1992, the
Company responded to the FCC's inquiry letter, contesting the
allegations contained therein. The matter is currently pending
at the FCC.
7. On August 5, 1993, an organization known as
Americans for Responsible Television ("ART") filed a pleading
styled as a Formal Petition to Deny against the Company's
application for consent to assignment of the KRTH, Los Angeles,
license. The Company filed an Opposition to the Petition on
August 16, 1993, and ART filed a Reply on August 23, 1993. On
approximately October 21, 1993, Mr. Al Westcott filed a late-
filed Petition to Deny the KRTH assignment application. On
February 1, 1994, the FCC granted the KRTH application and denied
both Petitions, and the Company closed the KRTH acquisition on
February 15, 1994. On March 3, 1994, ART filed a Petition for
Reconsideration of the FCC's grant, and on April 13, 1994, the
Company filed an Opposition thereto. The FCC has not yet acted
on these filings. Accordingly, the FCC's grant of the KRTH has
not become a Final Order, and the application remains pending
under the FCC's rules.
8. On November 3, 1994, ART filed a Petition to Deny
against the Company's application for FCC consent to the
assignment of the KLUV-FM, Dallas, Texas license. The arguments
advanced by ART were similar to those set forth in its Petition
against the KRTH assignment. ART cites two complaints relating
to allegedly indecent broadcasts not previously considered by the
FCC, one filed in March, 1994 relating to broadcasts on two
occasions on the Company's Station WBCN in February and March,
1994, and another relating to a September, 1994 broadcast on
Station WRNO in New Orleans, a station not licensed to the
Company, which carries the Howard Stern Show. On November 17,
1994, the Company filed an Opposition to the Petition which
vigorously contested the allegations set forth in the Petition,
and ART filed a Reply on November 23, 1994. The matter is
currently pending at the FCC.
Schedule II to Subsidiary Loan Agreement
_______________________________________
</page>
<PAGE>
EXHIBIT A
[Form of Note]
PROMISSORY NOTE
$_______________ _________ __, 19__
New York, New York
FOR VALUE RECEIVED, SAGITTARIUS BROADCASTING CORPORATION, a
New York corporation (the "Borrower"), 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 Borrower 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
the Borrower, 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 Amended and
Restated Loan Agreement dated as of December 22, 1994 (as
amended, modified and supplemented and in effect from time to
time, the "Loan Agreement") between the Borrower 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.
Note
____
</page>
<PAGE>
- 2 -
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
SAGITTARIUS BROADCASTING CORPORATION
By_________________________
Name:
Title:
Note
____
</page>
<PAGE>
SCHEDULE OF LOANS
This Note evidences Loans assumed, made, Continued or
Converted as contemplated by or under the within-described Loan
Agreement to the Borrower, 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
Note
____
</page>
<PAGE>
EXHIBIT B-1
[Form of Opinion of Counsel to the Borrower]
Opinion of Counsel to the Borrower
__________________________________
</page>
<PAGE>
EXHIBIT B-2
[Form of Opinion of FCC Counsel to the Borrower]
Opinion of Counsel to the Borrower
__________________________________
</page>
<PAGE>
- 2 -
Opinion of Counsel to the Borrower
__________________________________
</page>
<PAGE>
EXECUTION COUNTERPART
GUARANTEE AGREEMENT
AMENDED AND RESTATED GUARANTEE AGREEMENT dated as of
December 22, 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 "SUBSIDIARY BORROWERS" on the
signature pages hereof (each, a "Subsidiary Borrower" and,
collectively together with each other Restricted Subsidiary of
the Company to which Subsidiary Acquisition Loans are made or
assigned, the "Subsidiary Borrowers"); each of the other
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 and the Subsidiary Borrowers, each an "Obligor"
and, collectively, the "Obligors"); and THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), as administrative 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 "Administrative Agent").
The Company, certain lenders (the "Existing Banks"),
The Chase Manhattan Bank (National Association), as
administrative agent for the Existing Banks (in such capacity,
together with its successors in such capacity, the "Existing
Administrative Agent"), Bank of Montreal, The Bank of New York
and Chemical Bank, as co-agents for the Existing Banks (in such
capacity, together with their respective successors in such
capacity, the "Existing Co-Agents)" and Chemical Bank as
collateral agent for the Existing Banks (in such capacity,
together with its successor in such capacity, the "Existing
Collateral Agent") are parties to an Amended and Restated Credit
Agreement dated as of June 7, 1994, as amended by Amendment No. 1
thereto dated as of November 15, 1994 (such Amended and Restated
Credit Agreement 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 Existing Banks to the Company and
certain subsidiaries of the Company in an aggregate principal
amount not exceeding $470,000,000.
Hemisphere Broadcasting Corporation, a Delaware
corporation and a wholly owned subsidiary of the Company ("HBC"),
Guarantee Agreement
___________________
</page>
<PAGE>
- 2 -
and The Chase Manhattan Bank (National Association), as Existing
Administrative Agent, are parties to a Loan Agreement dated as of
June 7, 1994 (as modified and supplemented and in effect on the
date hereof, the "Existing HBC Loan Agreement") governing loans
of HBC held by certain of the Existing Banks pursuant to the
Existing Credit Agreement. Infinity Broadcasting Corporation of
Boston, a Delaware corporation and a wholly owned subsidiary of
the Company ("Infinity of Boston"), and The Chase Manhattan Bank
(National Association), as Existing Administrative Agent, are
parties to a Loan Agreement dated as of June 7, 1994 (as modified
and supplemented and in effect on the date hereof, the "Existing
Infinity of Boston Loan Agreement") governing loans of Infinity
of Boston held by certain of the Existing Banks pursuant to the
Existing Credit Agreement. Infinity Broadcasting Corporation of
California, a Delaware corporation and a wholly owned subsidiary
of the Company ("Infinity of California"), and The Chase
Manhattan Bank (National Association), as Existing Administrative
Agent, are parties to a Loan Agreement dated as of June 7, 1994
(as modified and supplemented and in effect on the date hereof,
the "Existing Infinity of California Loan Agreement") governing
loans of Infinity of California held by certain of the Existing
Banks pursuant to the Existing Credit Agreement. Sagittarius
Broadcasting Corporation, a New York corporation and a wholly
owned subsidiary of the Company ("SBC"), and The Chase Manhattan
Bank (National Association), as Existing Administrative Agent,
are parties to a Loan Agreement dated as of June 7, 1994 (as
modified and supplemented and in effect on the date hereof, the
"Existing SBC Loan Agreement" and, together with the Existing HBC
Loan Agreement, the Existing Infinity of Boston Loan Agreement
and the Existing Infinity of California Loan Agreement, the
"Existing Subsidiary Loan Agreements") governing loans of SBC
held by certain of the Existing Banks pursuant to the Existing
Credit Agreement.
The Company, the other Obligors and the Existing
Collateral Agent are also parties to a Guarantee Agreement dated
as of June 7, 1994 (as modified and supplemented and in effect on
the date hereof, the "Existing Guarantee Agreement") pursuant to
which the Obligors guaranteed the obligations of the Company and
the Subsidiary Borrowers under the Existing Credit Agreement and
the Existing Subsidiary Loan Agreements.
The Company, 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 America
Illinois, Bank of Montreal, The Bank of New York, Chemical Bank,
Compagnie Financiere de CIC et de l'Union Eurpoeenne, The First
National Bank of Boston and National Westminster Bank USA, as co-
agents for the Banks (in such capacity, together with their
respective successors in such capacity, the "Co-Agents"); and
Guarantee Agreement
___________________
</page>
<PAGE>
- 3 -
Chemical Bank, as collateral agent for the Banks (in such
capacity, together with its successors in such capacity, the
"Collateral Agent"; together with the Administrative Agent and
the Co-Agents, the "Agents") have entered into a Second Amended
and Restated Credit Agreement dated as of December 22, 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.
HBC and the Administrative Agent have entered into an
Amended and Restated Loan Agreement dated as of December 22, 1994
(as modified and supplemented and in effect from time to time,
the "HBC Term Loan Agreement") providing for the amendment and
restatement of the Existing HBC Loan Agreement. Infinity of
Boston and the Administrative Agent have entered into an Amended
and Restated Loan Agreement dated as of December 22, 1994 (as
modified and supplemented and in effect from time to time, the
"Infinity of Boston Term Loan Agreement") providing for the
amendment and restatement of the Existing Infinity of Boston Loan
Agreement. Infinity of California and the Administrative Agent
have entered into an Amended and Restated Loan Agreement dated as
of December 22, 1994 (as modified and supplemented and in effect
from time to time, the "Infinity of California Term Loan
Agreement") providing for the amendment and restatement of the
Existing Infinity of California Loan Agreement. SBC and the
Administrative Agent have entered into an Amended and Restated
Loan Agreement dated as of December 22, 1994 (as modified and
supplemented and in effect from time to time, the "SBC Term Loan
Agreement" and, together with the HBC Term Loan Agreement, the
Infinity of Boston Term Loan Agreement and the Infinity of
California Term Loan Agreement, the "Subsidiary Term Loan
Agreements") providing for the amendment and restatement of the
Existing SBC Loan Agreement.
It is a condition precedent to the effectiveness of the
amendment and restatement of the Existing Credit Agreement and
the amendment and restatement of the Existing Subsidiary Loan
Agreements that the Existing Guarantee Agreement also be amended
and restated.
To induce the Banks to amend and restate the Existing
Credit Agreement and to extend credit thereunder and, to induce
the Banks to amend and restate each of the Existing Subsidiary
Loan Agreements and to extend credit thereunder, and, in the case
of the amendment and restatement of the Existing Credit Agreement
as so amended and restated, to extend credit to additional
Subsidiary Borrowers under the Subsidiary Acquisition 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 Guarantee Agreement as provided herein.
Guarantee Agreement
___________________
</page>
<PAGE>
- 4 -
Accordingly, effective as of the Effective Date (as defined in
the Credit Agreement), the parties hereto hereby agree that the
Existing Guarantee Agreement shall be amended and restated in its
entirety to read as set forth in this Agreement:
Section 1. Definitions. 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):
"Guaranteed Obligations" shall refer to the obligations
guaranteed by the respective Obligors under Section 2 hereof and
shall mean: (a) with respect to the Company, (i) the obligations
of each Subsidiary Borrower 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(d) or (e) of the Subsidiary Loan Agreement to which
such Subsidiary Borrower is a party with respect to such
Subsidiary Borrower, whether or not allowed as a claim in any
such case or proceeding) on the Loans made to such Subsidiary
Borrower and the Notes of such Subsidiary Borrower and all other
amounts owing by such Subsidiary Borrower under the Subsidiary
Loan Agreement to which such Subsidiary Borrower is a party and
such Notes in respect of the Loans made to or assumed by such
Subsidiary Borrower and the Notes of such Subsidiary Borrower and
(ii) the obligations of each Obligor other than the Company to
pay all other amounts owing by such Obligor under each other
Basic Document to which such Obligor is a party (including,
without limitation, such amounts owing under this Agreement); (b)
with respect to each Obligor other than the Company, (i) the
obligations of the Company and each other Obligor (the Company
and each other Obligor being herein called a "Guaranteed
Obligor") to pay all amounts (including, without limitation,
interest accruing on the Loans 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 such Guaranteed Obligor,
whether or not allowed as a claim in any such case or proceeding)
owing by such Guaranteed Obligor under each Basic Document to
which such Guaranteed Obligor is a party (including, without
limitation, this Agreement, the Security Agreement and, if such
Guaranteed Obligor is a Borrower, each Loan Document to which
such Guaranteed Obligor is a party and the Notes of such
Guaranteed Obligor and (ii) Interest Protection Obligations.
"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.
Guarantee Agreement
___________________
</page>
<PAGE>
- 5 -
"Loan Documents" shall mean, collectively, the Credit
Agreement and each Subsidiary Loan Agreement.
"Swap Provider" shall mean a Bank in its capacity as a
party to an Interest Rate Protection Agreement between such Bank
and the Company.
Section 2. The Guarantee.
2.01 Guarantee. Each of the Obligors hereby jointly
and severally guarantees to each of the Banks and the Agents and
their respective successors and assigns the prompt payment in
full when due (whether at stated maturity, by acceleration, by
mandatory or optional prepayment or otherwise) of such Obligor's
Guaranteed Obligations, in each case strictly in accordance with
the terms thereof. Each of the Obligors hereby further jointly
and severally agrees that if any of such Obligor's Guaranteed
Obligations shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory or optional prepayment or
otherwise), such Obligor will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of such Guaranteed
Obligations, the same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
2.02 Obligations Unconditional. The obligations of
each of the Obligors under Section 2.01 hereof are absolute and
unconditional, joint and several, irrespective of the value,
genuineness, validity, regularity or enforceability of the
obligations of any other Obligor under the Loan Documents or any
other Basic Document or any substitution, release or exchange of
any other guarantee of or security for any of such Obligor's
Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge
or defense of a surety or guarantor, it being the intent of this
Section 2.02 that the obligations of the each of the Obligors
hereunder shall be absolute and unconditional, joint and several,
under any and all circumstances. Without limiting the generality
of the foregoing, it is agreed that, to the extent permitted by
applicable law, the occurrence of any one or more of the
following shall not affect the liability of any of the Obligors
under this Section 2:
(i) at any time or from time to time, without notice
to such Obligor, the time for any performance of or
compliance with any of its Guaranteed Obligations shall be
extended, or such performance or compliance shall be waived;
Guarantee Agreement
___________________
</page>
<PAGE>
- 6 -
(ii) any of the acts mentioned in any of the provisions
of any Loan Document or any other Basic Document shall be
done or omitted;
(iii) the maturity of any of such Guaranteed Obligations
shall be accelerated, or any of such Guaranteed Obligations
shall be modified, supplemented or amended in any respect,
or any right under any Loan Document or any other Basic
Document shall be waived or any other guarantee of any of
such Guaranteed Obligations or any security therefor shall
be released or exchanged in whole or in part or otherwise
dealt with; or
(iv) any lien or security interest granted as security
for any of such Guaranteed Obligations shall fail to be
perfected.
Each of the Obligors hereby expressly waives diligence,
presentment, demand of payment, protest and all notices
whatsoever, and any requirement that any of the Agents and the
Banks exhaust any right, power or remedy or proceed against any
other Obligor under any Loan Document or any other Basic Document
or against any other Person under any other guarantee of, or
security for, any of such Obligor's Guaranteed Obligations.
2.03 Reinstatement. The obligations of each of the
Obligors under this Section 2 shall be automatically reinstated
if and to the extent that for any reason any payment by or on
behalf of any other Obligor in respect of any of such Obligor's
Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of such Guaranteed Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise
and each of the Obligors jointly and severally agrees that it
will indemnify each of the Agents and the Banks on demand for all
reasonable costs and expenses (including, without limitation,
fees of counsel) incurred by such Agent or such Bank in
connection with such rescission or restoration, including any
such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or
similar law.
2.04 Subrogation. Each of the Obligors hereby jointly
and severally agrees that until the payment and satisfaction in
full of all of such Obligor's Guaranteed Obligations and the
expiration and termination of all Commitments under the Credit
Agreement it shall not exercise any right or remedy arising by
reason of any performance by it of its guarantee in Section 2.01
hereof, whether by subrogation or otherwise, against any other
Obligor or any other guarantor of any of such Guaranteed
Guarantee Agreement
___________________
</page>
<PAGE>
- 7 -
Obligations or any security for any of such Guaranteed Obligations.
2.05 Remedies. Each of the Obligors jointly and
severally agrees that, as between the Obligors, on the one hand,
and the Agents and the Banks, on the other hand, the obligations
of each Borrower under each of the Loan Documents to which it is
a party and such Borrower's Notes may be declared to be forthwith
due and payable as provided in Section 9 of such Loan Document
(and shall be deemed to have become automatically due and payable
in the circumstances provided in said Section 9) for purposes of
Section 2.01 hereof notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from
becoming automatically due and payable) as against such Borrower
and that, in the event of such declaration (or such obligations
being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by such Borrower)
shall forthwith become due and payable by such Obligor for
purposes of said Section 2.01.
2.06 Continuing Guarantee. The guarantee in this
Section 2 is a continuing guarantee, and shall apply to all
Guaranteed Obligations of each Obligor whenever arising.
2.07 Rights of Contribution. The Obligors other than
the Company hereby agree, as between themselves, that if any of
them (an "Excess Funding Guarantor") shall pay any of its
Guaranteed Obligations under Section 2.01 hereof in excess of
such Excess Funding Guarantor's Pro Rata Share (as hereinafter
defined) of such Guaranteed Obligations less, if such Obligor is
a Subsidiary Borrower, any amounts paid by such Obligor in
respect of repayments of principal of Loans made to it, the other
such Obligors shall, on demand (but subject to the next sentence
hereof), pay to such Excess Funding Guarantor an amount equal to
their respective Pro Rata Shares of such Excess Funding
Guarantor's payment. The payment obligation of each of such
Obligors to any Excess Funding Guarantor under this Section 2.07
shall be subordinate and subject in right of payment to the prior
payment in full of the Guaranteed Obligations of such Obligor
and, if such Obligor is a Subsidiary Borrower, the obligation of
such Obligor to pay the principal of and interest on Loans made
to it under the Subsidiary Loan Agreement to which it is a party
and all other amounts owing thereunder, and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to
such excess until payment and satisfaction in full of all of such
obligations. For the purposes hereof, "Pro Rata Share" shall
mean, for any Obligor other than the Company, a percentage equal
to the percentage that the excess of the fair value of its assets
as at September 30, 1994, over the amount of its liabilities
(including contingent liabilities) as at such date is of the
excess of the aggregate value of the assets of all other such
Guarantee Agreement
___________________
</page>
<PAGE>
- 8 -
Obligors as at such date over their aggregate liabilities
(including contingent liabilities) as at such date.
2.08 Limitation on Subsidiary Obligor Obligations. In
any action or proceeding involving any State corporate law, or
any State or Federal bankruptcy, insolvency, reorganization or
other law affecting the rights of creditors generally, if the
obligations of any Obligor other than the Company under
Section 2.01 hereof would otherwise, taking into account the
provisions of Section 2.07 hereof, be held or determined to be
void, invalid or unenforceable, or subordinated to the claims of
any other creditors, on account of the amount of its liability
under said Section 2.01, then, notwithstanding any other
provision hereof to the contrary, the amount of such liability
shall, without any further action by such Obligor, any Bank, the
Agents or any other Person, be automatically limited and reduced
to the highest amount which is valid and enforceable and not
subordinated to the claims of other creditors as determined in
such action or proceeding.
2.09 FCC Approval. Each of the Obligors agrees to
take any action that the Administrative Agent may reasonably
request in order to obtain from the FCC such approval as may be
necessary to enable the Administrative Agent and the Collateral
Agent and the Banks to exercise and enjoy the full rights and
benefits granted to the Administrative Agent and the Collateral
Agent by the Loan Documents and the other Basic Documents and
each other agreement, instrument and document delivered to the
Administrative Agent or the Collateral Agent in connection
therewith, including specifically, at the expense of such Obligor
the use of such Obligor's best efforts to assist in obtaining
approval of the FCC for any action or transaction contemplated by
the Loan Documents and the other Basic Documents 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 the
collateral covered by the Security Documents by or on behalf of
the Administrative Agent or the Collateral Agent or any
assumption by the Administrative Agent or the Collateral Agent of
voting rights relating thereto effected in accordance with the
terms of the Security Documents.
2.10 Instrument for the Payment of Money. Each
Obligor hereby acknowledges that the guarantee in this Section 2
constitutes an instrument for the payment of money, and consents
and agrees that any Bank or any Agent, at its sole option, in the
event of a dispute by such Obligor in the payment of any moneys
Guarantee Agreement
___________________
</page>
<PAGE>
- 9 -
due hereunder, shall have the right to bring motion-action under
New York CPLR Section 3213.
Section 3. Payments; Pro Rata Treatment; Sharing of
Payments, Etc.
3.01 Payments.
(a) Except to the extent otherwise provided herein all
payments of Guaranteed Obligations and other amounts to be made
by each Obligor under this Agreement 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 accounts of the
Obligors with it (with notice to such Obligors).
(c) The Obligors shall, at the time they make or cause
to be made any payment under this Agreement, notify the
Administrative Agent (which shall so notify the intended
recipient(s) thereof) of the Guaranteed Obligations or other
amounts to which such payment is to be applied in which case such
payment shall be so applied, subject to Section 3.02 hereof (and
in the event that they fail 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 Section 3.02).
(d) Each payment received by the Administrative Agent
under this Agreement 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 Guaranteed Obligations in respect of which such
payment is made.
(e) All payments by the Obligors hereunder shall be
made without deduction, set-off or counterclaim.
(f) If the due date of any payment under this
Agreement would otherwise fall on a day which is not a Business
Day such payment shall be made on the immediately preceding
Guarantee Agreement
___________________
</page>
<PAGE>
- 10 -
Business Day and interest payable on any amount so paid shall be
payable to, but excluding, the date such payment is made.
3.02 Sharing of Payments, Etc.
(a) The Obligors agree that, in addition to (and
without limitation of) any right of set-off, banker's lien or
counterclaim a Bank may otherwise have, each Bank shall be
entitled, at its option, to offset balances held by it for
account of any Obligor at any of its offices, in Dollars or in
any other currency, against any Guaranteed Obligations payable to
such Bank hereunder, that are not paid when due, in which case it
shall promptly notify such Obligor and the Administrative Agent
thereof, provided that such Bank's failure to give such notice
shall not affect the validity thereof.
(b) If any Bank shall obtain payment from any Obligor
of any principal of or interest on any Loan of any Class or
payment of any other amount under any Basic Document or otherwise
through the exercise of any right of set-off, banker's lien or
counterclaim or similar right, and, as a result of such payment,
such Bank shall have received a greater percentage of the
principal or interest then due and payable under the Loan
Documents in respect of the Loans of such Class held by such Bank
than the percentage of principal or interest then due and payable
under the Loan Documents in respect of the Loans of such Class
held by the other Banks received by the other Banks holding such
Loans it shall promptly purchase from such other Banks
participations in (or if and to the extent specified by such
Bank, direct interests in) the Loans of such Class held by such
other Banks (or in interest due thereon, as the case may be) in
such amounts, and make such other adjustments from time to time
as shall be equitable, to the end that all of such Banks shall
share the benefit of such excess payment (net of any expenses
which may be incurred by such Bank in obtaining or preserving
such excess payment) pro rata in accordance with the principal
and/or interest on the Loans of such Class then due and payable
held by each of such Banks. To such end all the Banks shall make
appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or
must otherwise be restored.
(c) Each Borrower agrees that any Bank so purchasing
such a participation (or direct interest) may exercise all rights
of set-off, banker's lien, counterclaim or similar rights with
respect to such participation as fully as if such Bank were a
direct holder of Loans or other amounts (as the case may be)
owing to such Bank in the amount of such participation.
(d) Nothing contained herein shall require any Bank to
exercise any such right or shall affect the right of any Bank to
Guarantee Agreement
___________________
</page>
<PAGE>
- 11 -
exercise, and retain the benefits of exercising, any such right
with respect to any other indebtedness or obligation of any
Obligor. If, under any applicable bankruptcy, insolvency or
other similar law, any Bank receives a secured claim in lieu of a
set-off to which this Section 3.03 applies, such Bank shall, to
the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Banks
entitled under this Section 3.03 to share in the benefits of any
recovery on such secured claim.
Section 4. Miscellaneous.
4.01 No Waiver. No failure on the part of the Agents
or any Bank 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 single
or partial exercise by any of the Administrative Agent, the other
Agent or any Bank 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.
4.02 Notices. All notices, requests, consents and
demands hereunder shall be in writing and telexed, telecopied or
delivered to the intended recipient at the "Address for Notices"
specified beneath its name (or, in the case of any of the
Obligors, to the "Address for Notices" specified beneath the name
of the Company in the Credit Agreement) 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 telex
or telecopier or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as
aforesaid.
4.03 Expenses. The Obligors jointly and severally
agree to reimburse each of the Banks and the Agents for all
reasonable costs and expenses of the Banks and the Agents
(including, without limitation, the reasonable fees and expenses
of legal counsel) in connection with (i) any Default and any
enforcement or collection proceeding resulting therefrom,
including, without limitation, all manner of participation in or
other involvement with (x) bankruptcy, insolvency, receivership,
foreclosure, winding up or liquidation proceedings, (y) judicial
or regulatory proceedings and (z) workout, restructuring or other
negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is consummated)
and (ii) the enforcement of this Section 4.03.
Guarantee Agreement
___________________
</page>
<PAGE>
- 12 -
4.04 Amendments, Etc. The terms of this Agreement may
be waived, altered or amended only by an instrument in writing
duly executed by each Obligor and the Administrative Agent (with
the consent of such of the Banks as are required for such purpose
under the Credit Agreement). Any such amendment or waiver shall
be binding upon the Agents and each Bank, each holder of any of
the Guaranteed Obligations and each Obligor.
4.05 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective
successors and assigns of each Obligor, the Agents, the Banks and
each holder of any of the Guaranteed Obligations (provided that
no Obligor shall assign or transfer its rights hereunder without
the prior written consent of the Administrative Agent acting with
the consent of such of the Banks as are required for such purpose
under the Credit Agreement).
4.06 Captions. The 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.
4.07 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.
4.08 Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by, and construed in accordance with,
the law of the State of New York. 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.
4.09 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.
4.10 Severability. If any provision hereof is invalid
and unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, (a) the other provisions hereof shall
Guarantee Agreement
___________________
</page>
<PAGE>
- 13 -
remain in full force and effect in such jurisdiction and shall be
liberally construed in favor of the Agents and the Banks in order
to carry out the intentions of the parties hereto as nearly as
may be possible and (b) 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.
Guarantee Agreement
___________________
</page>
<PAGE>
- 14 -
IN WITNESS WHEREOF, the parties hereto have caused this
Amended and Restated Guarantee Agreement to be duly executed and
delivered as of the day and year first above written.
COMPANY
INFINITY BROADCASTING CORPORATION
By_______________________________
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 DALLAS
INFINITY BROADCASTING CORPORATION
OF DETROIT
INFINITY BROADCASTING CORPORATION
OF FLORIDA
INFINITY BROADCASTING CORPORATION
OF GLENDALE
Guarantee Agreement
___________________
</page>
<PAGE>
- 15 -
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.
INFINITY WPGC (AM), INC.
SAGITTARIUS BROADCASTING
CORPORATION
13 RADIO CORPORATION
By _______________________
Name: Farid Suleman
Title: Vice President-Finance
Guarantee Agreement
___________________
</page>
<PAGE>
- 16 -
Administrative Agent
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Existing Administrative Agent
By ________________________
Name:
Title:
Address for Notices:
The Chase Manhattan Bank
(National Association), as Agent
4 Metrotech Center -- 13th Floor
Brooklyn, New York 11245
Attention: New York Agency
with a copy to:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Attention: John P. White
Guarantee Agreement
___________________
</page>
<PAGE>
EXECUTION COUNTERPART
SECURITY AGREEMENT
SECOND AMENDED AND RESTATED SECURITY AGREEMENT dated as
of December 22, 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 lenders (the "Existing Banks"),
______________
The Chase Manhattan Bank (National Association), as
administrative agent for the Existing Banks (in such capacity,
together with its successors in such capacity, the "Existing
________
Administrative Agent"), Bank of Montreal, The Bank of New York
____________________
and Chemical Bank, as co-agents for the Existing Banks (in such
capacity, together with their respective successors in such
capacity, the "Existing Co-Agents)" and Chemical Bank as
__________________
collateral agent for the Existing Banks (in such capacity,
together with its successors in such capacity, the "Existing
________
Collateral Agent") are parties to an Amended and Restated Credit
________________
Agreement dated as of June 7, 1994 as amended by Amendment No. 1
thereto dated as of November 15, 1994 (such Amended and Restated
Credit Agreement 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 Existing Banks to the Company and
certain subsidiaries of the Company in an aggregate principal
amount not exceeding $470,000,000.
Hemisphere Broadcasting Corporation, a Delaware
corporation and a wholly owned subsidiary of the Company ("HBC"),
___
and The Chase Manhattan Bank (National Association), as Existing
Administrative Agent, are parties to a Loan Agreement dated as of
June 7, 1994 (as modified and supplemented and in effect on the
date hereof, the "Existing HBC Loan Agreement") governing loans
___________________________
Security Agreement
__________________
</PAGE>
<PAGE>
- 2 -
of HBC held by certain of the Existing Banks pursuant to the
Existing Credit Agreement. Infinity Broadcasting Corporation of
Boston, a Delaware corporation and a wholly owned subsidiary of
the Company ("Infinity of Boston"), and The Chase Manhattan Bank
__________________
(National Association), as Administrative Agent, are parties to a
Loan Agreement dated as of June 7, 1994 (as modified and
supplemented and in effect on the date hereof, the "Existing
________
Infinity of Boston Loan Agreement") governing loans of Infinity
_________________________________
of Boston held by certain of the Existing Banks pursuant to the
Existing Credit Agreement. Infinity Broadcasting Corporation of
California, a Delaware corporation and a wholly owned subsidiary
of the Company ("Infinity"), and The Chase Manhattan Bank
________
(National Association), as Existing Administrative Agent, are
parties to a Loan Agreement dated as of June 7, 1994 (as modified
and supplemented and in effect on the date hereof, the "Existing
________
Infinity of California Loan Agreement") governing loans of
_____________________________________
Infinity of California held by certain of the Existing Banks
pursuant to the Existing Credit Agreement. Sagittarius
Broadcasting Corporation, a New York corporation and a wholly
owned subsidiary of the Company ("SBC"), and The Chase Manhattan
___
Bank (National Association), as Existing Administrative Agent,
are parties to a Loan Agreement dated as of June 7, 1994 (as
modified and supplemented and in effect on the date hereof the
"Existing SBC Loan Agreement" and, together with the Existing HBC
___________________________
Loan Agreement, the Existing Infinity of Boston Loan Agreement
and the Existing Infinity of California Loan Agreement, the
"Existing Subsidiary Loan Agreements") governing loans of SBC
___________________________________
held by certain of the Existing Banks pursuant to the Existing
Credit Agreement.
The Company, the other Obligors and the Existing
Collateral Agent are also parties to a an Amended and Restated
Security Agreement dated as of June 7, 1994 (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 and
the Existing Subsidiary Loan Agreements.
The Company, 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 America
____________________
Illinois, Bank of Montreal, The Bank of New York, Chemical Bank,
Compagnie Financiere de CIC et de l'Union Europeenne, The First
National Bank of Boston and National Westminister Bank USA, as
co-agents for the Banks (in such capacity, together with their
Security Agreement
__________________
</PAGE>
<PAGE>
- 3 -
respective successors in such capacity, the "Co-Agents"); and
_________
Chemical Bank, as collateral agent for the Banks (in such
capacity, together with its successors in such capacity, the
"Collateral Agent"; together with the Administrative Agent and
________________
the Co-Agents, the "Agents") have entered into a Second Amended
______
and Restated Credit Agreement dated as of December 22, 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.
HBC and the Administrative Agent have entered into an
Amended and Restated Loan Agreement dated as of December 22, 1994
(as modified and supplemented and in effect from time to time,
the "HBC Term Loan Agreement") providing for the amendment and
_______________________
restatement of the Existing HBC Loan Agreement. Infinity of
Boston and the Administrative Agent have entered into an Amended
and Restated Loan Agreement dated as of December 22, 1994 (as
modified and supplemented and in effect from time to time, the
"Infinity of Boston Term Loan Agreement") providing for the
______________________________________
amendment and restatement of the Existing Infinity of Boston Loan
Agreement. Infinity of California and the Administrative Agent
have entered into an Amended and Restated Loan Agreement dated as
of December 22, 1994 (as modified and supplemented and in effect
from time to time, the "Infinity of California Term Loan
________________________________
Agreement") providing for the amendment and restatement of the
_________
Existing Infinity of California Loan Agreement. SBC and the
Administrative Agent have entered into an Amended and Restated
Loan Agreement dated as of December 22, 1994 (as modified and
supplemented and in effect from time to time, the "SBC Term Loan
_____________
Agreement" and, together with the HBC Term Loan Agreement, the
_________
Infinity of Boston Term Loan Agreement and the Infinity of
California Term Loan Agreement, the "Subsidiary Term Loan
____________________
Agreements") providing for the amendment and restatement of the
__________
Existing SBC Loan Agreement.
It is a condition precedent to the effectiveness of the
amendment and restatement of the Existing Credit Agreement and
the amendment and restatement of the Existing Subsidiary Loan
Agreements 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, to induce
the Banks to amend and restate each of the Existing Subsidiary
Loan Agreements and to extend credit thereunder, and, in the case
of the amendment and restatement of the Existing Credit Agreement
as so amended and restated, to extend credit to additional
Security Agreement
__________________
</PAGE>
<PAGE>
- 4 -
Subsidiary Borrowers under the Subsidiary Acquisition 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 in its
entirety 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 Second 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.
"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.
"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
Security Agreement
__________________
</PAGE>
<PAGE>
- 5 -
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.
SECTION 2. Representations and Warranties.
______________________________
2.01 Stock Collateral. Each of the Obligors
________________
represents and warrants to each of the Secured Parties that
(i) the shares of capital stock of each of the corporations (each
an "Issuer") described opposite its name in the column labeled
______
"Issuer" on Schedule I hereto and stated as being owned by such
Obligor in said Schedule I 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
Security Agreement
__________________
</PAGE>
<PAGE>
- 6 -
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");
________________
(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,
Security Agreement
__________________
</PAGE>
<PAGE>
- 7 -
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;
(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
Security Agreement
__________________
</PAGE>
<PAGE>
- 8 -
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 of such Obligor's rights under or
relating to FCC Licenses, whether now or hereafter
granted to such Obligor, including without limitation
each of the FCC Licenses listed on Schedule III hereto
and the proceeds of any FCC Licenses, provided,
________
however, that such security interest does not include
_______
at any time the FCC Licenses to the extent (but only to
the extent) that at such time the Collateral Agent may
not validly possess a security interest therein
pursuant to the Communications Act of 1934, as amended,
and the regulations promulgated thereunder, as in
effect at such time, but such security interest does
include, to the maximum extent permitted by law, all
rights incident or appurtenant to the FCC Licenses and
the right to receive all proceeds derived from or in
connection with the sale, assignment or transfer of the
FCC Licenses;
(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;
Security Agreement
__________________
</PAGE>
<PAGE>
- 9 -
(viii) all rights and claims of the Company against
any Subsidiary or of any Restricted Subsidiary against
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
Security Agreement
__________________
</PAGE>
<PAGE>
- 10 -
Obligor; all trade names and service marks (including
without limitation the trade names and service marks
listed in Schedule IV hereto), logos, copyrights and
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;
Security Agreement
__________________
</PAGE>
<PAGE>
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(xv) all rights in and to policies of insurance
and the proceeds thereof; and
(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:
4.01 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
Security Agreement
__________________
</PAGE>
<PAGE>
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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
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
Security Agreement
__________________
</PAGE>
<PAGE>
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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;
(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.
4.02 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.
Security Agreement
__________________
</PAGE>
<PAGE>
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4.03 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.
4.04 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
Security Agreement
__________________
</PAGE>
<PAGE>
- 15 -
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
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
Security Agreement
__________________
</PAGE>
<PAGE>
- 16 -
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.
4.05 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.
Security Agreement
__________________
</PAGE>
<PAGE>
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4.06 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
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
Security Agreement
__________________
</PAGE>
<PAGE>
- 18 -
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
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.
4.07 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.
4.08 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.
4.09 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
Security Agreement
__________________
</PAGE>
<PAGE>
- 19 -
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:
(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:
Security Agreement
__________________
</PAGE>
<PAGE>
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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;
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 and the termination or expiration of the
Commitments, 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.
Security Agreement
__________________
</PAGE>
<PAGE>
- 21 -
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
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.
_____________
5.01 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.
5.02 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.
Security Agreement
__________________
</PAGE>
<PAGE>
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5.03 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.
5.04 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
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.
5.05 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.
5.06 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
Security Agreement
__________________
</PAGE>
<PAGE>
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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.
5.07 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
things as the Collateral Agent may reasonably request in order
fully to effect the purposes of this Agreement.
5.08 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.
5.09 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
Security Agreement
__________________
</PAGE>
<PAGE>
- 24 -
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
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
Security Agreement
__________________
</PAGE>
<PAGE>
- 25 -
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 Collateral 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.
5.16 Certain Regulatory Requirements. Any provision
_______________________________
contained herein to the contrary notwithstanding, no action shall
be taken hereunder by the Collateral Agent or any Bank with
respect to any item of Collateral unless and until all applicable
requirements (if any) of the FCC under the Federal Communications
Act of 1934, as amended, and the respective rules and regulations
thereunder and thereof, as well as any other federal, state or
local laws, rules and regulations of any other regulatory or
governmental bodies applicable to or having jurisdiction over the
Obligors (or any entity under the control of the Obligors), have
been satisfied with respect to such action and there have been
obtained such consents, approvals and authorizations (if any) as
may be required to be obtained from the FCC or any other
governmental authority under the terms of any license or similar
operating right held by the Obligors (or any entity under the
control of the Obligors). Without limiting the generality of the
foregoing, the Collateral Agent (on behalf of itself and the
Banks) hereby agrees that (a) voting and consensual rights in the
ownership interest of any Obligor (the "Pledged Interest") will
________________
remain with the holders of such voting and consensual rights upon
and following the occurrence of an Event of Default unless and
until any required prior approvals of the FCC to the transfer of
such voting and consensual rights to the Collateral Agent shall
have been obtained; (b) upon the occurrence of any Event of
Default and foreclosure of the Pledged Interest pursuant to this
Agreement there will be either a private or public sale of the
Pledged Interests; and (c) prior to the exercise of voting or
consensual rights by the purchaser at any such sale, the prior
consent of the FCC pursuant to 47 U.S.C. 310(d) will be
obtained. It is the intention of the parties hereto that the
Liens in favor of the Collateral Agent on the Collateral shall in
all relevant aspects be subject to and governed by said statutes,
rules and regulations, that nothing in this Agreement shall be
construed to diminish the control exercised by the Obligors in
respect of FCC Licenses except in accordance with the provisions
of such statutory requirements, rules and regulations. Each
Obligor agrees that upon request from time to time by the
Collateral Agent it will use its reasonable best efforts to
Security Agreement
__________________
</PAGE>
<PAGE>
- 26 -
obtain any governmental, regulatory or third party consents,
approvals or authorizations referred to in this Section 5.16,
including without limitation, upon any request of the Collateral
Agent following an Event of Default, to prepare, sign and file
with the FCC (or cause to be prepared signed and filed with the
FCC) any application or application for consent to the assignment
of the FCC Licenses or transfer of control required to be signed
by the Company or any of its Subsidiaries necessary or
appropriate under the FCC's rules and regulations for approval of
any sale or transfer of any of the Pledged Interests or the
assets of the Company or any of its Subsidiaries or any transfer
of control in respect of any FCC License.
Security Agreement
__________________
</PAGE>
<PAGE>
- 27 -
IN WITNESS WHEREOF, the parties hereto have caused this
Second Amended and Restated Security Agreement to be duly
executed as of the day and year first above written.
COMPANY
INFINITY BROADCASTING CORPORATION
By______________________________
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 DALLAS
INFINITY BROADCASTING CORPORATION
OF DETROIT
Security Agreement
__________________
</PAGE>
<PAGE>
- 28 -
INFINITY BROADCASTING CORPORATION
OF FLORIDA
INFINITY BROADCASTING CORPORATION
OF GLENDALE
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.
INFINITY WPGC (AM), INC.
Security Agreement
__________________
</PAGE>
<PAGE>
- 29 -
SAGITTARIUS BROADCASTING
CORPORATION
13 RADIO CORPORATION
By______________________________
Name: Farid Suleman
Title: Vice President - Finance
COLLATERAL AGENT
CHEMICAL BANK
as Collateral Agent
By_______________________________
Name:
Title:
Security Agreement
__________________
</PAGE>
<PAGE>
SCHEDULE I
to
Security Agreement
INITIAL STOCK COLLATERAL
1. Stock owned by Infinity Broadcasting Corporation
which is to be, or has been, pledged as collateral security for
the Secured Obligations:
Issuer Description of Securities
______ _____________________________________
Type of Number of Certificate
Security Shares No(s)
________ _________ ____________
1. The Audio House Common 3500 1
Stock
2. Hemisphere Broad- Common 100 1
casting Corporation Stock
3. Infinity Broad- Common 100 1
casting Corporation Stock
of Pennsylvania
4. Sagittarius Broad- Common 100 1
casting Corporation Stock
5. 13 Radio Corporation Common 100 1
Stock
6. Infinity Broad- Common 100 1
casting Corporation Stock
of Illinois
7. Infinity Broad- Common 100 1
casting Corporation Stock
of Los Angeles
8. Infinity Broad- Common 100 2
casting Corporation Stock
of Michigan
9. Infinity Broad- Common 100 1
casting Corporation Stock
of Florida
10. Infinity Broad- Common 100 1
casting Corporation Stock
of Washington, D.C.
11. Infinity Ventures, Common 100 1
Inc. Stock
12. Infinity Broadcasting Common 100 1
Corporation of Tampa Stock
Security Agreement
__________________
</PAGE>
<PAGE>
- 2 -
13. Infinity Broadcasting Common 100 1
Corporation of Glendale Stock
14. Infinity Broadcasting Common 100 1
Corporation of Texas Stock
15. Infinity Broadcasting Common 100 1
Corporation of Maryland Stock
16. Hit Radio, Inc. Common 20 3
Stock
17. Infinity Broadcasting Common 1 3
Corporation of New York Stock
18. Infinity Broadcasting Common 1,000 1
Corporation of Atlanta Stock
19. Infinity Broadcasting Common 1,000 1
Corporation of Chicago Stock
20. Infinity Broadcasting Common 1,000 1
Corporation of Boston Stock
21. Infinity Broadcasting Common 100 1
Corporation of California Stock
22. Infinity Broadcasting Common 100 2
Corporation of Detroit Stock
23. Infinity Broadcasting Common 1,000 1
Corporation of Stock
Philadelphia
24. Infinity Broadcasting Common 100 1
Corporation of Dallas Stock
2. Stock owned by Sagittarius Broadcasting Corporation which is
to be, or has been, pledged as collateral security for the Secured
Obligations:
Issuer Description of Securities
______ _____________________________________
Type of Number of Certificate
Security Shares No(s)
________ _________ ____________
Hit Radio, Inc. Common 80 1
Stock
3. Stock owned by Infinity Broadcasting Corporation of Maryland
which is to be, or has been, pledged as collateral security for the Secured
Obligations:
Issuer Description of Securities
______ _____________________________________
Security Agreement
__________________
</PAGE>
<PAGE>
- 3 -
Type of Number of Certificate
Security Shares No(s)
________ _________ ____________
Infinity Broadcasting Common 1,726,257 1
Corporation of Baltimore Stock
4. Stock owned by Infinity Broadcasting Corporation of Baltimore
which is to be, or has been, pledged as collateral security for the Secured
Obligations:
Issuer Description of Securities
______ _____________________________________
Type of Number of Certificate
Security Shares No(s)
________ _________ ____________
Infinity WLIF, Inc. Common 1000 1
Stock
Infinity WLIF-AM, Inc. Common 1000 1
Stock
5. Stock owned by Hit Radio, Inc. which is to be, or has been,
pledged as collateral security for the Secured Obligations:
Issuer Description of Securities
______ _____________________________________
Type of Number of Certificate
Security Shares No(s)
________ _________ ____________
C&W Land Corporation Common 100 2
Stock
6. Stock owned by Infinity Broadcasting Corporation of Maryland
which is to be, or has been, pledged as collateral security for the Secured
Obligations:
Issuer Description of Securities
______ _____________________________________
Type of Number of Certificate
Security Shares No(s)
________ _________ ____________
Infinity WPGC (AM), Inc. Common 100 1
Stock
Security Agreement
__________________
</PAGE>
<PAGE>
SCHEDULE II
to
Security Agreement
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
A. The chief executive office and principal place of business for such
Obligor is:
600 Madison Avenue
New York, NY 1002
b. The correct legal name of each Obligor, and the location of all tangible
collateral (including Inventory and Equipment) of each Obligor and books
and record with respect to the collateral of each Obligor is as follows:
Obligor Location Property
_______ ________ ________
1. 13 Radio Corporation 2700 Highway 225 East Office, Studio,
DBA Radio Station Pasadena, TX 77506 Towers &
KXYZ-AM Transmitter
2. Infinity Broadcasting Perimeter 400 Center Office & Studio
Corporation of Suite 493
Atlanta DBA Radio 1100 Johnson Ferry Road, NE
Station WZGC-FM Atlanta, GA 30342
210 Peach Tree Street Tower, Antenna &
Atlanta, GA 30303 Transmitter
3. The Audio House, Inc. 3031 Tisch Way, Suite 3 Office & Studio
DBA Radio Station San Jose, CA 95128
KOME-FM
369 Broadway Office
San Francisco, CA 94135
End of Blackberry Hill Road Towers &
San Jose, CA 95032 Transmitter
Holiday Lake
Los Gatos, CA 95037 Repeater
4. Infinity Broadcasting One West Pennsylvania Ave. Studio
Corporation of Baltimore, MD 21204
Baltimore
5. Infinity Broadcasting John Hancock Bldg. Office & Studio
Corporation of Boston 200 Clarendon Street
DBA Radio Station Boston, MA 02116
WZLX-FM
800 Boylston Street Tower, Antenna &
Prudential Tower Transmitter
Boston, MA 02116
Security Agreement
__________________
</PAGE>
<PAGE>
- 2 -
6. Infinity Broadcasting 5901 Venice Blvd. Office & Studio
Corporation of Los Angeles, CA 90034
California DBA Radio
Station KRTH-FM 5515 Melrose Avenue Tower &
Los Angeles, CA 90038 Transmitter
7. Infinity Broadcasting 875 N. Michigan Avenue Office, Studio,
Corporation of Suite 1300 Tower, Antenna &
Chicago DBA Radio Chicago, IL 60611 Transmitter
Station WUSN-FM
8. C & W Land 600 Madison Avenue Office
Corporation New York, NY 10022
Municipal Building Antenna &
Village of Richfield Park Transmitter
Richfield, NJ 07660
9. Infinity Broadcasting 15600 W. Twelve Mile Road Office & Studio
Corporation of Southfield, MI 48076
Detroit DBA Radio
Station WXYT-FM 20777 W. Ten Mile Road Tower &
Southfield, MI 48076 Transmitter
10. Infinity Broadcasting 9450 Koger Boulevard Office & Studio
Corporation of St. Petersburg, FL 33702
Florida DBA Radio
Station WXYK-FM 111 Madison Street Transmitter
Tampa, FL 33602
11. Infinity Broadcasting 1250 Beaudry Blvd. Tower &
Corporation of Glendale, CA 91208 Transmitter
Glendale
12. Hemisphere 1265 Boylston Street Office & Studio
Broadcasting Boston, MA 02215
Corporation DBA Radio
Station WBCN-FM 800 Boylston Street Transmitter
Prudential Tower
51st Floor
Boston, MA 02116
13. Hit Radio, Inc. 600 Madison Avenue Office & Studio
New York, NY 10022
Municipal Building Antenna &
Village of Richfield Park Transmitter
Richfield, NJ 07660
Security Agreement
__________________
</PAGE>
<PAGE>
- 3 -
14. Infinity Broadcasting 180 N. Michigan Avenue Office & Studio
Corporation of Chicago, IL 60601
Illinois DBA Radio
Stations WJJD-AM and 2355 Ballard Road Towers &
WJMK-FM Des Plains, IL 60016 Transmitters
Sears Tower
233 Walker Drive Towers &
Chicago, IL 60606 Transmitters
15. Infinity Broadcasting 3500 W. Olive Avenue Office & Studio
Corporation of Los Suite 900
Angeles DBA Radio Burbank, CA 91505
Station KROQ-FM
1250 Beaudry Blvd. Towers &
Glendale, CA 91208 Transmitters
16. Infinity Broadcasting 6301 Ivy Lane Office & Studio
Corporation of Suite 800
Maryland Greenbelt, MD 20770
5605 Walker Mill Road FM Transmitter
District Heights, MD 20747
American University FM
Broadcast Center Transmitter/
4400 Massachusetts Ave., NW Auxiliary
Washington, DC 20016
17. Infinity Broadcasting 2201 Woodward Heights Blvd. Office, Studio,
Corporation of Detroit, MI 48220 Tower, Antenna &
Michigan DBA Radio Transmitter
Station WOMC-FM
18. Infinity Broadcasting 34-12 36th Street Office, Studio &
Corporation of New Kaufman Astoria Studios Antenna
York DBA Radio Astoria, NY 11100
Station WFAN-AM
1 High Island Tower, Antenna &
Bronx, NY 10464 Transmitter
102-05 Ditmars Blvd. Antenna
Elmhurst, NY 11105
19. Infinity Broadcasting One Bala Plaza Office & Studio
Corporation of Bala Cynwyd, PA 19004
Pennsylvania DBA
Radio Station WYSP-FM 329 Dominio Lane Towers &
Philadelphia, PA 19128 Transmitter
Security Agreement
__________________
</PAGE>
<PAGE>
- 4 -
20. Infinity Broadcasting 441 N. 5th Street Office & Studio
Corporation of Philadelphia, PA 19123
Philadelphia DBA
Radio Station WIP-AM 49 Creek Road Tower, Antenna &
Bellmar, NJ 08031 Transmitter
21. Sagittarius 600 Madison Avenue Corporate Office
Broadcasting New York, NY 10022
Corporation DBA Radio
Station WXRK-FM 600 Madison Avenue Office & Studio
New York, NY 10022
350 5th Avenue Transmitter
Empire State Bldg.
New York, NY 10118
22. Infinity Broadcasting 1718 East S.R. 574 Towers &
Corporation of Tampa Seffner, FL 33584 Transmitter
DBA Radio Station
WXYK-AM
23. Infinity Broadcasting 9400 N. Central Expressway Office & Studio
Corporation of Texas Suite 1600
DBA Radio Stations Dallas, TX 75231
KVIL-AM/FM
Luna Road & Royal Lane Towers & AM
Dallas County, TX 75229 Transmitters
1584 Beltline Road FM Transmitters
Cedar Hill, TX 75104
24. Infinity Ventures, 9400 N. Central Expressway Office
Inc. Suite 1600
Dallas, TX 75104
25. Infinity Broadcasting 10800 Main Street Office & Studio
Corporation of Fairfax Station, VA 22030
Washington, D.C. DBA
Radio Stations 6110 Ox Road Transmitter
WJFK-AM/FM Fairfax Station, VA 22039
8191A Lee Highway Transmitter
Merrifield, VA
26. Infinity WLIF, Inc. One West Pennsylvania Ave. Studio
DBA Radio Station Baltimore, MD 21204
WLIF-FM
1570 Hart Road Tower &
Baltimore, MD 21204 Transmitter
27. Infinity WLIF-AM, One West Pennsylvania Ave. Studio
Inc. DBA Radio Baltimore, MD 21204
Station WLIF-AM
1570 Hart Road Tower &
Baltimore, MD 21204 Transmitter
Security Agreement
__________________
</PAGE>
<PAGE>
- 5 -
28. Infinity WPGC (AM), 6301 Ivy Lane Office & Studio
Inc. Greenbelt, MD 20770
1401 S. Addison Road AM Transmitter
Capital Heights, MD 20747
29. Infinity Broadcasting 600 Madison Avenue Office
Corporation of Dallas New York, NY 10022
Security Agreement
__________________
</PAGE>
<PAGE>
SCHEDULE III
to
Security Agreement
INFINITY LICENSES
STATION LICENSEE LOCATION EXPIRATION AUXILIARY
DATE STATIONS
WBCN (FM) Hemisphere Boston, MA 4-1-98 KC-23788
Broadcasting KPJ-731
Corporation KPI-967
KA-59059
WOMC (FM) Infinity Detroit, MI 10-1-96 None
Broadcasting
Corporation of
Michigan
WQYK (AM) Infinity Seffner, FL 2-1-96 KPH-489
Broadcasting WLO-300
Corporation of WLO-294
Tampa KQ-2007
WQYK-FM Infinity St. Petersburg, 2-1-96 KB-55366
Broadcasting Fl WGR-700
Corporation of KB-55075
Florida KPF-938
WSM-738
WXRK (FM) Sagittarius New York, NY 6-1-98 None
Broadcasting
Corporation
WJFK-FM* Infinity Manassas, VA 10-1-95 KC-23871
Broadcasting WKF-571
Corporation of KB-96057
Washington, DC WLF-574
KXYZ (AM) 13 Radio Houston, TX 8-1-97 KB-96723
Corporation KB=55123
KB-97453
KDMM (AM) Infinity Highland Park, 8-1-97 KYY-236
Broadcasting TX WDB-28
Corporation of WHE-952
Texas
KVIL-FM Infinity Highland 8-1-97 WDB-29
Broadcasting Park/Dallas, TX WHE-754
Corporation of
Texas
Security Agreement
__________________
</PAGE>
<PAGE>
- 2 -
KROQ-FM Infinity Pasadena, CA 12-1-97 KC-23784
Broadcasting KC-24165
Corporation of WLD-844
Los Angeles
KOME (FM) The Audio San Jose, CA 12-1-97 WGY-70
House
KOME-FM1 The Audio Santa Cruz, CA 12-1-97 None
House
KOME-FM2 The Audio N. Morgan Hill, 12-1-97 None
House CA
WZRC (AM) HIT Radio, New York, NY 6-1-98 None
Inc.
WYSP (FM) Infinity Philadelphia, 8-1-98 WBM-707
Broadcasting PA
Corporation of
Pennsylvania
WJJD (AM)+ Infinity Chicago, IL 12-1-96 KC-23126
Broadcasting KC-62798
Corporation of WCQ-489
Illinois
WJMK (FM) Infinity Chicago, IL 12-1-96 WNEP-356
Broadcasting
Corporation of
Illinois
WJFK (AM) Infinity Baltimore, MD 10-1-95 KLS-700
WLIF(AM), Inc.
WLIF-FM Infinity WLIF, Baltimore, MD 10-1-95 WMU-306
Inc. KB-96713
WFAN (AM) Infinity New York, NY 6-1-98 WIG-32
Broadcasting WLE-597
Corporation of WGX-605
New York WGX-606
KJK-499
KRTM-FM Infinity Los Angeles, CA 12-1-97 KJ-781
Broadcasting WLI-713
Corporation of KPJ-782
California
WIP (AM) Infinity Philadelphia, 8-1-98 BLP00731
Broadcasting PA KEO-200
Corporation of KGW-834
Philadelphia KPJ-300
KQA-894
WLG-840
Security Agreement
__________________
</PAGE>
<PAGE>
- 3 -
WZGC (FM) Infinity Atlanta, GA 4-1-96 WGR-809
Broadcasting KC-27626
Corporation of
Atlanta
WUSN (FM) Infinity Chicago, IL 12-1-96 None
Broadcasting
Corporation of
Chicago
WZLX (FM) Infinity Boston, MA 4-1-98 KC-27625
Broadcasting WDT-959
Corporation of
Boston
WPGC (AM) Infinity WPGC Morningside, MD 10-1-95 WLG-309
(AM), Inc. KXF-938
KPG-713
WPGC-FM Infinity Morningside, MD 10-1-95 WGV-787
Broadcasting WLF-861
Corporation of WHA-849
Maryland
WXYT (AM) Infinity Detroit, MI 10-1-96 KB-97092
Broadcasting KJL-529
Corporation of KPF-376
Detroit
_______________________________________
* WJFK-FM application to replace expired construction permit (BPH-940302JA)
is pending.
+ WJJD(AM) construction permit application (BP-930420AB) is pending.
WJJD(AM) license application (BL-930420AC) is also pending.
Security Agreement
__________________
</PAGE>
<PAGE>
SCHEDULE IV
to
Security Agreement
TRADE NAMES AND SERVICE MARKS
A. Infinity Broadcasting Corporation has obtained service mark
registrations for the following radio station call signs, slogans and
logos:
REGISTRATION EXPIRATION
MARK SERIAL NUMBER NUMBER DATE
1. BOSTON SUNDAY 73-792,484 1,592,616 04/17/2000
REVIEW
2. BSR 73-792,485 1,575,653 01/02/2000
3. KOME 557,685 1,394,369 05/20/2006
4. K-ROCK 783,622 1,562,610 10/24/2009
5. K-ROCK 73-794,597 1,573,867 12/26/1999
92.3 FM
(and Design)
6. KROQ 693,190 1,496,190 07/12/2008
7. KROQ ROQ OF 705,218 1,503,295 09/06/2008
THE 80's & 90's
8. KVIL 541,861 1,374,244 12/03/2005
9. LOVELINE 73-802,893 1,576,858 01/09/2000
10. ROCK 'N' ROLL 783,434 1,565,129 11/07/2009
RUMBLE
11. THE OFFICIAL 73-791,769 1,578,198 01/16/2000
HISTORY OF
ROCK 'N' ROLL
12. THE ROQ OF 758,693 1,539,630 05/16/2009
THE 90's
13. WBCN 557,679 1,392,641 05/06/2006
14. WBCN (and Rock 73-792,465 1,613,261 09/11/2000
Lobster Design)
15. WJFK 776,630 1,559,275 10/03/2009
16. WJJD 557,687 1,393,535 05/13/2006
Security Agreement
__________________
</PAGE>
<PAGE>
- 2 -
17. WJMK 557,686 1,393,534 05/13/2006
18. WYSP 557,688 1,393,536 05/13/2006
19. 106.7 FM WJFK 783,433 1,562,611 10/24/2009
(and Design)
20. WXRK (Sagittarius 620,454 1,436,735 04/14/2007
Broadcasting Corporation)
21. FANLINE 74-061,932 1,651,078 07/16/2001
22. MIKE AND THE 74-083,473 1,653,935 08/13/2001
MAD DOG
23. SPORTS RADIO 74-188,225 1,694,889 06/16/2002
66-AM WFAN
(and Design)
24. THE SEX PALACE 74-291,177 1,782,987 07/20/2003
25. FREE MONEY Illinois State 12/23/2002
Registration
Number 071654
26. GIVE A BUCK; 74-284,607 1,778,086 6/22/2003
FEED A FAMILY
27. RADIO FREE D.C. 74-402,526 1,862,049 11/8/2004
28. THE ROCK OF BOSTON 74-404,162 1,858,885 10/18/2004
29. TRAFFIC JAM & JOKES 75 year license agreement dated 9/30/94
with Gary Patterson Guthrie (licensor)
30. WASHINGTON'S 74-402,527 1,846,399 7/19/2004
SUPERSTATION (Supplemental
Register)
31. Z-93 CLASSIC ROCK Georgia State 12/17/2000
& ROLL Registration
Number 5-10,507
Security Agreement
__________________
</PAGE>
<PAGE>
EXHIBIT E-1
[Form of Opinion of Counsel to the Obligors]
December __, 1994
To the Banks and the Agents party to the Second Amended
and Restated Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as counsel to Infinity Broadcasting
Corporation (the "Company") in connection with the Second Amended
_______
and Restated Credit Agreement, dated as of December 22, 1994 (the
"Credit Agreement"), 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 (the
"Administrative Agent"), Bank of America Illinois, Bank of
____________________
Montreal, The Bank of New York, Chemical Bank, Compagnie
Financiere de CIC et de l'Union Europeenne, The First National
Bank of Boston and National Westminster Bank USA as co-agents for
the Banks (collectively, the "Co-Agents"), and Chemical Bank, as
_________
collateral agent for the Banks (the "Collateral Agent" and,
________________
together with the Administrative Agent and the Co-Agents, the
"Agents"). We have also acted as counsel to Hemisphere
______
Broadcasting Corporation ("HBC"), Sagittarius Broadcasting
___
Corporation ("SBC"), Infinity Broadcasting Corporation of Boston
___
("Boston") and Infinity Broadcasting Corporation of California
______
("California") (together with the Company, HBC, SBC, Boston and
__________
California are hereinafter collectively referred to as the
"Borrowers") in connection with separate Loan Agreements, each
_________
dated as of December 22, 1994 (the "Subsidiary Loan Agreements"),
__________________________
between each of HBC, SBC, Boston and California and the
Administrative Agent. This opinion is being delivered to you
pursuant to Section 6.01(c) of the Credit Agreement and Section
6.01(c) of each of the Subsidiary Loan Agreements. Capitalized
terms not otherwise defined herein are used with the meanings
given to them in the Credit Agreement.
In so acting, we have participated in the preparation
of the Credit Agreement and the other Basic Documents. We have
also examined and relied upon the representations and warranties
as to factual matters contained in or made pursuant to the Credit
Agreement, the Basic Documents and certificates of officers of
the Company and examined and relied upon the originals, or copies
Opinion of Counsel to the Obligors
__________________________________
</page>
<PAGE>
To the Banks and the Agents
party to the Credit Agreement - 2 - December __, 1994
certified or otherwise identified to our satisfaction, of such
records, documents, certificates and other instruments, and have
made such other investigations, as in our judgment are necessary
or appropriate to enable us to render the opinion expressed
below.
In rendering our opinion we have assumed the due
authorization, execution and delivery of each document referred
to herein by all parties to such document other than the
Obligors. We have also assumed that each Obligor incorporated in
a state other than New York or Delaware has the corporate power
and authority to execute, deliver and perform its obligations
under each Basic Document to which it is a party and to grant the
security interests granted by it under the Security Agreement.
For purposes of our opinion that each such Obligor has duly
authorized such execution, delivery, performance and grant, and
has duly executed and delivered each Basic Document to which it
is a party, we have, with your permission, assumed that the laws
of the state in which such Obligor is organized are identical to
the laws of the State of New York or Delaware.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Delaware. Each Restricted Subsidiary of the Company
incorporated in Delaware or New York is a corporation duly
incorporated, validly existing and in good standing under the
laws of Delaware or New York, as the case may be. Each of the
Obligors incorporated in Delaware or New York has the necessary
corporate power to execute, deliver and perform its obligations
under the Basic Documents to which it is a party and to grant the
security interests granted by it under the Security Agreement and
each of the Borrowers has the necessary corporate power to borrow
under the Credit Agreement or the Subsidiary Loan Agreements, as
the case may be. The Company is duly qualified to transact
business in the State of New York. SBC is duly qualified to
transact business in the States of New Jersey and Connecticut.
HBC is duly qualified to transact business in the States of
Massachusetts, New Hampshire, Rhode Island and Vermont. Boston
is duly qualified to transact business in the State of
Massachusetts. California is duly qualified to transact business
in the State of California.
2. The execution and delivery by each Obligor of each
Basic Document to which it is a party, the performance by such
Obligor of its obligations thereunder, the granting by such
Obligor of the security interests to be granted by it under the
Security Agreement and the borrowings by each Borrower under, and
Opinion of Counsel to the Obligors
__________________________________
</page>
<PAGE>
To the Banks and the Agents
party to the Credit Agreement - 3 - December __, 1994
in accordance with the terms of, the Credit Agreement and the
Subsidiary Loan Agreements, as the case may be, have been duly
authorized by all necessary corporate action on the part of such
Obligor and do not violate any provision of any federal or New
York law or regulation applicable to any Obligor, or result in
the breach of, or constitute a default or require any consent
under, or (except for the Liens created pursuant to the Security
Documents and Permitted Liens) result in the creation of any Lien
upon any of the Properties of the Obligors pursuant to any
indenture or other agreement or instrument listed on Exhibit A
hereto, except for any such violation, breach, default, Lien or
failure to obtain a consent that would not have a Material
Adverse Effect.
3. Each of the Basic Documents constitutes the legal,
valid and binding obligation of the respective Obligor party
thereto, enforceable against such Obligor in accordance with its
respective terms, except as such enforceability may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws of general applicability relating to or affecting
the enforcement of creditors' rights and (b) the application of
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), and except that no opinion is expressed as to Section
3.02(c) of the Guarantee Agreement. We express no opinion as to
(i) whether a federal or state court outside of the State of New
York would give effect to the choice of New York law provided for
in the Credit Agreement, the Subsidiary Loan Agreements and the
Guarantee Agreement, (ii) the second sentence of Section 11.10 of
the Credit Agreement, the second sentence of Section 10.08 of the
Subsidiary Loan Agreements, the first sentence of Section 5.13 of
the Security Agreement, and the second sentence of Section 4.08
of the Guarantee Agreement, insofar as such sentences relate to
the subject matter jurisdiction of the United States District
Court for the Southern District of New York to adjudicate any
controversy related to the Credit Agreement, the Subsidiary Loan
Agreements, the Guarantee Agreement or the Notes, (iii) the
waiver of inconvenient forum set forth in Section 11.10 of the
Credit Agreement, Section 10.08 of the Subsidiary Loan
Agreements, Section 5.13 of the Security Agreement and Section
4.08 of the Guarantee Agreement with respect to proceedings in
the United States District Court for the Southern District of New
York, (iv) Section 11.11 of the Credit Agreement, Section 10.09
of the Subsidiary Loan Agreements, Section 5.14 of the Security
Agreement and Section 4.09 of the Guarantee Agreement or
(v) Section 2.10 of the Guarantee Agreement. For purposes of
this and the following paragraph, we wish to note that (w) the
FCC takes the position that the Obligors may not validly create a
security interest in their FCC Licenses and their Communications
Opinion of Counsel to the Obligors
__________________________________
</page>
<PAGE>
To the Banks and the Agents
party to the Credit Agreement - 4 - December __, 1994
Franchises, (x) the obligations of the Obligors under the
Security Agreement may be subject to limitations upon the
exercise of remedial or procedural provisions contained therein,
which limitations do not, in our opinion, make the remedies and
procedures which will be afforded to the Agents and the Banks
inadequate for the practical realization of the substantive
benefits intended to be provided to the Agents and the Banks by
the Security Agreement, (y) provisions of the Basic Documents
which permit any Agent or any Bank to take action or make
determinations may be subject to a requirement that such action
be taken or such determinations be made on a reasonable basis and
in good faith and (z) a holder of a Note may, under certain
circumstances, be called upon to prove the outstanding amount of
the Loans evidenced thereby.
4. The Security Agreement is effective to create in
favor of the Collateral Agent for the benefit of the Banks and
the Agents a valid security interest under the New York Uniform
Commercial Code as in effect in the State of New York (the "New
York Uniform Commercial Code") in all of the right, title and
interest of the Obligors in, to an under all "equipment",
"inventory", "accounts", "instruments", "documents", "chattel
paper" and "general intangibles" (as such terms are defined in
the New York Uniform Commercial Code) that are included within
the definition of "Collateral" set forth in the Security
Agreement, to the extent a security interest may be created
therein under the New York Uniform Commercial Code, as collateral
after its sale, exchange or other disposition only to the extent
provided in Sections 9-306, 9-307 and 9-308 of the New York
Uniform Commercial Code, (b) the security interest in Collateral
in which the respective Obligor acquires rights after the
commencement of a case under the Federal Bankruptcy Code in
respect of such Obligor may be limited by Section 552 of such
Code and (c) the security interest in any such Collateral
constituting a "security" (as defined in the New York Uniform
Commercial Code) is enforceable only to the extent that such
security also has been transferred to the Collateral Agent or a
Person designated by it in one of the ways set forth in Section
8-313(1) of the New York Uniform Commercial Code (delivery of
possession thereof to the Collateral Agent being one of such
ways).
5. Subject to the final sentence of this paragraph 5,
the security interest referred to in paragraph 4 above in the
types of Collateral below is perfected as described below:
(a) The security interest in that portion of the
Collateral (i) of the type described in Section 3(d)(x) of
the Security Agreement (trademarks and trademark-related
Opinion of Counsel to the Obligors
__________________________________
</page>
<PAGE>
To the Banks and the Agents
party to the Credit Agreement - 5 - December __, 1994
property), to the extent perfection of such security
interest is governed by the New York Uniform Commercial
Code, and (ii) consisting of "accounts" (as such term is
defined in the New York Uniform Commercial Code) is
perfected by the Collateral Agent filing the form of
financing statement set forth in Part B of Schedule 1 hereto
against each of the names identified in Part A of Schedule 1
hereto in each of the jurisdictions set forth in such Part A
with respect to each such name.
(b) The security interest in that portion of the
Collateral consisting of "inventory" or "equipment" (as such
terms are defined in the New York Uniform Commercial Code),
other than "equipment" constituting fixtures, is perfected
by the Collateral Agent filing the form of financing
statement set forth in Part B of Schedule 1 hereto against
each of the names identified in Part A of Schedule 1 hereto
in each of the jurisdictions set forth in such Part A with
respect to each such name.
(c) The security interest in that portion of the
Collateral consisting of "instruments" and "documents" (as
such terms are defined in the New York Uniform Commercial
Code) and of "Stock Collateral" (as defined in the Security
Agreement), to the extent constituting "securities" (as
defined in the New York Uniform Commercial Code),
"instruments" or "documents", is perfected by the Collateral
Agent taking possession thereof in the State of New York and
thereafter retaining possession.
In rendering the opinions in subparagraphs (a) and (b)
of this paragraph 5 we have, with your permission, assumed the
accuracy of the information set forth in Schedule II to the
Security Agreement.
When filed in each of the jurisdictions identified in
Schedule 1 hereto, the effectiveness of the financing statements
referred to in this paragraph 5 will lapse on the expiration of a
five year period from their date of filing unless appropriate
continuation statements are filed within the six month period
prior to expiration of the applicable five year period. If any
Obligor so changes its name, identity or corporate structure that
such financing statements become seriously misleading, such
financing statements will be ineffective to perfect a security
interest in collateral acquired more than four months after such
change. If any Obligor changes its chief executive office to a
new jurisdiction outside the jurisdiction in which it has its
chief executive office as indicated on Schedule II to the
Security Agreement, the effectiveness of such financing
Opinion of Counsel to the Obligors
__________________________________
</page>
<PAGE>
To the Banks and the Agents
party to the Credit Agreement - 6 - December __, 1994
statements will be terminated four months after such change as to
Collateral consisting of "accounts" (as such term is defined in
the New York Uniform Commercial Code).
6. Assuming that the Collateral Agent takes and
retains possession of the securities identified in Schedule I to
the Security Agreement in good faith and without notice of any
adverse claim (as defined in Section 8-302(2) of the New York
Uniform Commercial Code) and in bearer from or in registered form
issued to the Collateral Agent or endorsed either to the
Collateral Agent or in blank, the security interest therein
created under the Security Agreement will be perfected and will
have priority over all other security interests therein
theretofore or thereafter created under the New York Uniform
Commercial Code other than, for the limited period of time
provided for in such Sections, security interests perfected under
the temporary perfection provisions of Section 8-321(2), 9-304(4)
or 9-306 of the New York Uniform Commercial Code.
7. The issued and outstanding shares of capital stock
of each "Issuer" identified in Schedule I to the Security
Agreement is correctly described in such Schedule, and evidenced
by the certificates therein identified. The shares of capital
stock constituting Stock Collateral (as defined in the Security
Agreement) listed in Schedule I to the Security Agreement
constitute all of the issued and outstanding shares of capital
stock of each of the Company's Restricted Subsidiaries. For
purposes of the opinions expressed in this paragraph, we have
relied exclusively on a review of the minute books of directors
of the Obligors.
8. No authorization, consent or approval of, and no
filing or registration with, any governmental authority of the
State of New York or the United States is required on behalf of
any Obligor in connection with the execution, delivery or
performance by any Obligor of the Basic Documents to which it is
a party, except (a) the filings and recordings of Liens to be
created pursuant to the Security Agreement, (b) the filings
referred to in Section 7.06(b) of the Credit Agreement, (c) the
filings referred to in Section 7.05(a) of the Subsidiary Loan
Agreements and (d) authorizations, consents, approvals, filings
or registrations which, if not obtained or made, as the case may
be, would not reasonably be likely to have a Material Adverse
Effect.
9. None of the Obligors is an "investment company",
or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
Opinion of Counsel to the Obligors
__________________________________
</page>
<PAGE>
To the Banks and the Agents
party to the Credit Agreement - 7 - December __, 1994
10. None of the Obligors is a "holding company" or a
"subsidiary company" of a "holding company" or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding
company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
11. The Loans made to the Company, the Notes
evidencing such Loans and all other monetary obligations of the
Company owing to the Banks and the Agents under the Credit
Agreement and the Guarantee Agreement constitute "Senior
Indebtedness" and "Significant Senior Indebtedness", as such
terms are defined in the Senior Subordinated Indenture included
in the Subordinated Debt Documents, and the indebtedness of the
Company under such Loans and Notes and such other monetary
obligations are entitled to the benefits of the subordination
provisions contained in the Subordinated Debt Documents.
We express no opinion as to the existence of, or the
right, title or interest of any Obligor in, to or under, any of
the Collateral; and, except as expressly provided in paragraphs 4
through 6 above, we express no opinion as to the creation,
perfection or priority of any security interest in, or other Lien
on, the Collateral.
In giving the opinions set forth in paragraphs 4
through 6 hereof, we have assumed that the Uniform Commercial
Code in effect in each jurisdiction identified in Part A of
Schedule 1 hereto is identical to the New York Uniform Commercial
Code, except that we have examined standard compilations of the
Uniform Commercial Code as in effect in such other jurisdictions
to determine the appropriate location(s) for the filing of
financing statements in such jurisdictions.
In rendering the opinions in paragraph 2 above, we have
assumed that at the time of incurrence of any Loan by any
Borrower, such Loan would be permitted by the terms of Section
4.11 of the Senior Subordinated Indenture.
Our opinions as to perfection expressed in paragraphs 5
and 6, above, are subject to the assumption that none of the
Banks or the Agents has waived, subordinated or agreed with any
third party to any modification of the perfection or priority of
any of such security interests.
In rendering the foregoing opinion, with your
permission, we express no opinion as to the effect of any federal
law restricting the creation, perfection or enforcement of a
security interest in a broadcast license or as to the effect of
any federal or state laws regarding fraudulent conveyances, or of
Opinion of Counsel to the Obligors
__________________________________
</page>
<PAGE>
To the Banks and the Agents
party to the Credit Agreement - 8 - December __, 1994
provisions of Delaware or New York law restricting dividends,
loans or other distributions by a corporation or for the benefit
of its stockholders, on the validity or enforceability of any of
the Basic Documents.
This opinion is limited to laws of the State of New
York, the federal laws of the United States of America (other
than the Federal Communications Act of 1934, as amended, and the
regulations promulgated thereunder) and the General Corporation
Law of the State of Delaware.
Very truly yours,
Opinion of Counsel to the Obligors
__________________________________
</page>
<PAGE>
EXHIBIT A
1. Warrant Agreement, dated August 11, 1988, between the
Company and Bankers Trust Company, as warrant agent.
2. Indenture, dated as of March 24, 1992, between the Company
and Bank of Montreal Trust Company, as trustee.
3. Amended and Restated Stockholders' Agreement, dated as of
February 5, 1992, among the Company and certain of its
stockholders.
4. Employment Agreement, dated as of December 30, 1985, between
the Company and Michael A. Wiener.
5. Employment Agreement, dated as of December 30, 1985, between
the Company and Gerald Carrus.
6. Employment Agreement, dated as of September 10, 1990,
between the Company and Mel Karmazin, as amended on
September 30, 1991, February 4, 1992, June 14, 1993, August
16, 1993, November 19, 1993 and March 30, 1994.
7. Stock Option Plan, amended and restated as of August 16,
1993, and amended on November 19, 1993 and March 30, 1994.
8. Indemnity Agreement, dated as of February 27, 1986, between
the Company and Michael A. Wiener.
9. Indemnity Agreement, dated as of February 27, 1986, between
the Company and Gerald Carrus.
10. Indemnity Agreement, dated as of February 27, 1986, between
the Company and Mel Karmazin.
11. Indemnity Agreement, dated as of June 22, 1987, between the
Company and Farid Suleman.
12. Indemnity Agreement, dated as of February 4, 1992, between
the Company and Steven A. Lerman.
13. Indemnity Agreement dated as of October 18, 1994 between the
Company and Jeffrey Sherman.
14. Infinity Broadcasting Corporation Employees' 401(k) Plan.
15. Stock Option Agreement, dated as of June 27, 1988, between
WCK and Mel Karmazin.
Opinion of Counsel to the Obligors
__________________________________
</page>
<PAGE>
- 2 -
16. Amendment Agreement, dated as of August 2, 1988, to Stock
Option Agreement dated as of June 27, 1988, between WCK and
Mel Karmazin.
17. Amendment No. 1 to Stock Option Agreement, dated as of
October 14, 1988, between the Company and Mel Karmazin.
18. Agreement, dated as of July 26, 1993, between the Company
and Mel Karmazin, with respect to the exercise of certain
options granted pursuant to the Stock Option Agreement,
dated as of June 27, 1988, as amended.
19. Deferred Share Plan, amended and restated as of August 16,
1993, and amended on November 19, 1993.
Opinion of Counsel to the Obligors
__________________________________
</page>
<PAGE>
SCHEDULE 1
__________
Part A
______
The form of financing statement set forth in Part B of
this Schedule 1 must be filed in each of the jurisdictions set
forth below against each of the names identified below with
respect to such jurisdiction.
1. New York:
________
Secretary of State and County of New York
_________________________________________
Infinity Broadcasting Corporation
Infinity Broadcasting Corporation of Detroit
Infinity Ventures, Inc.
Sagittarius Broadcasting Corporation
Infinity Broadcasting Corporation of Dallas
each other Obligor named in this Schedule 1
Queens County
_____________
Infinity Broadcasting Corporation of New York
2. California:
__________
Secretary of State
__________________
Infinity Broadcasting Corporation of California
Infinity Broadcasting Corporation of Glendale
Infinity Broadcasting Corporation of Los Angeles
The Audio House, Inc.
3. Florida:
_______
Secretary of State
__________________
Infinity Broadcasting Corporation of Florida
Infinity Broadcasting Corporation of Tampa
4. Georgia:
_______
Fulton County
_____________
Infinity Broadcasting Corporation of Atlanta
5. Illinois:
________
Secretary of State
__________________
Infinity Broadcasting Corporation of Chicago
Infinity Broadcasting Corporation of Illinois
Opinion of Counsel to the Obligors
__________________________________
</page>
<PAGE>
- 2 -
6. Maryland:
________
Secretary of State
__________________
Infinity WLIF-AM, Inc.
Infinity WLIF, Inc.
Infinity Broadcasting Corporation of Maryland
Infinity Broadcasting Corporation of Baltimore
Infinity WPGC (AM), Inc.
Baltimore County
________________
Infinity WLIF-AM, Inc.
Infinity WLIF, Inc.
Infinity Broadcasting Corporation of Maryland
Infinity Broadcasting Corporation of Baltimore
Infinity WPGC (AM), Inc.
7. Massachusetts:
_____________
Secretary of State
__________________
Hemisphere Broadcasting Corporation
Infinity Broadcasting Corporation of Boston
City of Boston
Hemisphere Broadcasting Corporation
Infinity Broadcasting Corporation of Boston
8. Michigan:
________
Secretary of State
__________________
Infinity Broadcasting Corporation of Michigan
9. New Jersey:
__________
Secretary of State
__________________
C&W Land Corporation
Hit Radio, Inc.
Infinity Broadcasting Corporation of Philadelphia
Opinion of Counsel to the Obligors
__________________________________
</page>
<PAGE>
- 3 -
10. Pennsylvania:
____________
Secretary of State
__________________
Infinity Broadcasting Corporation of Pennsylvania
Infinity Broadcasting Corporation of Philadelphia
Montgomery County Prothonotary
______________________________
Infinity Broadcasting Corporation of Pennsylvania
Philadelphia County Prothonotary
________________________________
Infinity Broadcasting Corporation of Pennsylvania
Infinity Broadcasting Corporation of Philadelphia
11. Texas:
_____
Secretary of State
__________________
Infinity Broadcasting Corporation of Texas
13 Radio Corporation
12. Virginia:
________
Secretary of State
__________________
Infinity Broadcasting Corporation of Washington, D.C.
Fairfax County
______________
Infinity Broadcasting Corporation of Washington, D.C.
Opinion of Counsel to the Obligors
__________________________________
</page>
<PAGE>
EXHIBIT E-2
[Form of Opinion of FCC Counsel to the Obligors]
December __, 1994
To each of the Banks and Agents party to the
Second Amended and Restated Credit Agreement
referred to below
Ladies and Gentlemen:
We have acted as FCC counsel to Infinity Broadcasting
Corporation (the "Company") in connection with the Second Amended
and Restated Credit Agreement dated as of December 22, 1994 (the
"Credit Agreement"), 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 (the
"Administrative Agent"), Bank of America Illinois, Bank of
Montreal, The Bank of New York, Chemical Bank, Compagnie
Financiere de CIC et de l'Union Europeenne, The First National
Bank of Boston and National Westminster Bank USA, as co-agents
for the Banks (the "Co-Agents"), and Chemical Bank, as collateral
agent for the Banks (the "Collateral Agent") and, together with
the Administrative Agent and the Co-Agents, the "Agents"). We
have also acted as FCC counsel to Hemisphere Broadcasting
Corporation ("HBC"), Sagittarius Broadcasting Corporation
("SBC"), Infinity Broadcasting Corporation of Boston ("Boston")
and Infinity Broadcasting Corporation of California
("California") in connection with separate Loan Agreements, each
dated as of December 22, 1994 (the "Subsidiary Loan Agreements"),
between each of HBC, SBC, Boston and California and the
Administrative Agent. This opinion is being furnished to you
pursuant to Section 6.01(c) of the Credit Agreement and Section
6.01(c) of each of the Subsidiary Loan Agreements. Except as
otherwise specified herein, terms defined in the Credit Agreement
are used herein as defined therein.
For purposes of this opinion, we have examined: (i)
the Credit Agreement; (ii) the forms of the Infinity Term Loan
Note, the Infinity Acquisition Loan Note, the Revolving Credit
Note, the Subsidiary Loan Note and the Money Market Note attached
Opinion of FCC Counsel to the Obligors
______________________________________
</PAGE>
<PAGE>
December ___, 1994
Page 2
as Exhibits A-1 through A-5, respectively, to the Credit
Agreement (the "Notes"); (iii) the Subsidiary Loan Agreements;
(iv) the form of the Guarantee Agreement attached as Exhibit C to
the Credit Agreement (the "Guarantee Agreement"); (v) the form of
the Security Agreement attached as Exhibit D to the Credit
Agreement (the "Security Agreement" and, together with the Credit
Agreement, the Notes, the Subsidiary Loan Agreements and the
Guarantee Agreement, the "Credit Documents"); and (vi) original
or copies certified to our satisfaction of such other documents,
records and instruments as we have deemed necessary in connection
with the opinions hereinafter expressed.
In rendering the opinions expressed herein, we have
assumed with your permission and without independent
investigation that (a) the signatures on all documents examined
by us are genuine and that where any such signature purports to
have been made in a corporate, governmental, fiduciary, or other
capacity, the person who affixed such signature to such documents
had authority to do so, (b) the authenticity of documents
submitted to us as original, and the conformity to authentic
original documents of all documents submitted to us as certified,
conformed or photostatic copies and (c) the correctness of public
files, records and certificates of, or furnished by, governmental
or regulatory agencies or authorities.
As to questions of fact relevant to this opinion, we
have relied upon examination of our own files and records and
appropriate examination of public files of the FCC as of December
__, 1994. We have also relied upon representations made by the
Obligors to the FCC and upon a certificate of fact of an officer
of the Company. As used herein, the term "to our knowledge"
shall mean the conscious awareness of facts by the lawyers in
this firm primarily responsible for preparing this opinion letter
and for reviewing the Credit Documents without further
investigation other than as described in this paragraph. In
particular, we have not undertaken an on-site investigation or
independent evaluation of the Obligors' operations and in any
event do not express any opinion regarding the Stations'
technical operations. You should be aware that records of the
FCC that are public as a matter of law -- for example, under the
federal Freedom of Information Act -- may not be contained in the
public files of the FCC that we examined in connection with this
opinion. Furthermore, there may be records of matters pending at
the FCC that are not available for inspection by the public as a
matter of law.
This opinion is limited to matters arising under the
Communications Act of 1934, as amended (the "Act"), the published
Opinion of FCC Counsel to the Obligors
______________________________________
</PAGE>
<PAGE>
December ___, 1994
Page 3
rules and published opinions of the FCC and pertinent court
decisions, and we express no opinion as to any other laws.
Based upon and subject to the foregoing and to the
further qualifications, assumptions and limitations set forth
herein, we are of the opinion that:
1. The Obligors validly hold the FCC Licenses listed
in Schedule III to the Security Agreement as indicated therein.
Such FCC Licenses include all licenses, permits and
authorizations of the FCC necessary for the Obligors to operate
the AM and FM radio broadcast stations indicated on such
Schedule III.
2. To our knowledge, each of the Obligors has filed
with the FCC all reports, documents, instruments, information and
applications required to be filed pursuant to the FCC's rules and
regulations.
3. Subject to the qualifications set forth in the
next sentence, the execution and delivery of each of the Credit
Documents by each of the Obligors party thereto and the
borrowings by the Company under the Credit Agreement and by HBC,
BBC, Boston and California under the respective Subsidiary Loan
Agreement to which each is a party (i) do not and will not
violate the Act, (ii) will not violate the published rules and
regulations of the FCC, (iii) will not cause any forfeiture or
impairment of any FCC License by or before the FCC and (iv) will
not require the approval of the FCC. The foregoing opinions are
subject to the following qualifications:
(a) We call your attention to the fact that the
consent of the FCC may be necessary before the Banks or the
Agents may effect certain remedies described in the Credit
Documents. The Security Agreement contains a provision to the
effect that, notwithstanding anything to the contrary contained
in the Security Agreement, the secured parties thereunder will
not take any action pursuant to the Security Agreement which
would constitute or result in the assignment of an FCC License or
any change in control of an FCC licensee without first obtaining
the prior approval of the FCC, if such approval would be required
under then existing law. We assume that in enforcing the
remedies available to you under the Credit Documents, you will
act in accordance with this provision, with the Act, and with any
of the rules, regulations and policies of the FCC promulgated
thereunder.
(b) We advise you that the FCC and various courts have
held that it is unlawful to grant a security interest in an FCC
Opinion of FCC Counsel to the Obligors
______________________________________
</PAGE>
<PAGE>
December ___, 1994
Page 4
license or in any of the licensee's rights under or relating to
such a license or the Act.
(c) We advise you that the power of attorney granted
at Section 4.12 of the Security Agreement, and similar power-of-
attorney provisions in other Credit Documents, may be contrary to
the FCC's rules and policies and may be not recognized as
effective by the FCC.
(d) We call your attention to the fact that copies of
certain Credit Documents, including the Credit Agreement, the
Subsidiary Loan Agreements and the Security Agreement, may be
required to be filed by the Obligors with the FCC within thirty
(30) days after their execution.
We hereby confirm to you that, except as described in
Schedule V to the Credit Agreement, to our knowledge, (1) there
is not now issued or outstanding any notice of violation, order
to show cause, material complaint or investigation by or before
the FCC which might threaten or adversely affect any Obligor's
FCC Licenses or result in any material adverse effect on any of
the Obligor's operation of such Obligor's radio stations;
(2) there is no pending or threatened action or matter that would
lead us to believe that the FCC Licenses held by the Obligors
with respect to each radio station will not be renewed; and
(3) no notice has been issued by the FCC that now, or after
further notice or lapse of time or both would result in, a
revocation or termination of any FCC License of any Obligor prior
to the respective expiration dates thereof.
The opinions set forth above are as of the date hereof.
We assume no obligation to advise you of changes which may
thereafter be brought to our attention. Our opinions are based
on statutory laws, agency rules, regulations and policies, and
judicial decisions that are effective on the date hereof, and we
do not opine with respect to any law, regulation, rule or
governmental policy which may be enacted or adopted after the
date hereof, nor do we assume any responsibility to advise you of
future changes in our opinions.
This opinion letter is provided to you by us in our
capacity as special FCC counsel to the Obligors and may not be
Opinion of FCC Counsel to the Obligors
______________________________________
</PAGE>
<PAGE>
December ___, 1994
Page 5
relied upon by any person for any purpose other than in
connection with the transactions contemplated by the Credit
Agreement without, in each instance, our prior written consent.
Very truly yours,
LEVENTHAL, SENTER & LERMAN
By:_________________________
A Partner
Opinion of FCC Counsel to the Obligors
______________________________________
</PAGE>
<PAGE>
December 22, 1994
To the Banks and Agents party to the Second Amended and Restated
Credit Agreement referred to below and The Chase Manhattan Bank
(National Association), as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase
Manhattan Bank (National Association) ("Chase") in connection
with the Second Amended and Restated Credit Agreement dated as of
December 22, 1994 (the "Credit Agreement") between Infinity
Broadcasting Corporation (the "Company"); the persons identified
in the signature pages thereof under the caption "BANKS" (the
"Banks"); Chase, as administrative agent for the Banks (the
"Administrative Agent"); Bank of America Illinois, Bank of
Montreal, The Bank of New York, Chemical Bank, Compagnie
Financiere de CIC et de l'Union Europeenne, The First National
Bank of Boston and National Westminster Bank USA, as co-agents
for the Banks (the "Co-Agents"); and Chemical Bank, as collateral
agent for the Banks (the "Collateral Agent"; and together with
the Administrative Agent and the Co-Agents, the "Agents"). This
opinion is being furnished to you pursuant to Section 6.01(d) of
the Credit Agreement. Terms defined in the Credit Agreement are
used herein as defined therein.
We have assumed for purposes of our opinion hereinafter
set forth that the Credit Agreement has been duly authorized,
executed and delivered by the Company, each Bank and each Agent,
that each of the Infinity Term Loan Notes, the Infinity
Acquisition Loan Notes, the Revolving Credit Notes and the Money
Market Notes has been duly authorized, executed and delivered by
the Company, that the HBC Term Loan Agreement has been duly
authorized, executed and delivered by each of HBC and the
Administrative Agent, that each of the HBC Term Loan Notes has
been duly authorized, executed and delivered by HBC, that the
Infinity of Boston Term Loan Agreement has been duly authorized,
executed and delivered by each of Infinity of Boston and the
Administrative Agent, that each of the Infinity of Boston Term
Loan Notes has been duly authorized, executed and delivered by
</page>
<PAGE>
- 2 -
Infinity of Boston, that the Infinity of California Term Loan
Agreement has been duly authorized, executed and delivered by
each of Infinity of California and the Administrative Agent, that
each of the Infinity of California Term Loan Notes has been duly
authorized, executed and delivered by Infinity of California,
that the SBC Term Loan Agreement has been duly authorized,
executed and delivered by each of SBC and the Administrative
Agent, that each of the SBC Term Loan Notes has been duly
authorized, executed and delivered by SBC, that the Guarantee
Agreement has been duly authorized, executed and delivered by
each Obligor and the Administrative Agent, that the Security
Agreement has been duly authorized, executed and delivered by
each Obligor and the Collateral Agent, that each Obligor is duly
incorporated and validly existing under the laws of its state of
incorporation and has full power, authority and legal right to
make and perform the Basic Documents to which it is a party and
to grant the security interests granted by it under the Security
Agreement, that the Company has full power, authority and legal
right to borrow under the Credit Agreement and to make and
perform the Notes made by it and that each of HBC, Infinity of
Boston, Infinity of California and SBC has full power, authority
and legal right to borrow under the Subsidiary Term Loan
Agreement to which it is a party and to make and perform the
Subsidiary Term Loan Notes made by it.
We have examined originals or copies authenticated to
our satisfaction of all such corporate records of the Obligors,
agreements and other instruments, certificates of public
officials and of officers and representatives of the Obligors and
other documents, as we have deemed necessary in connection with
the opinions hereinafter expressed. In such examination we have
assumed the genuineness of all signatures, the authenticity of
documents submitted to us as originals, the conformity with the
originals of all documents submitted to us as certified or
photostatic copies, and the authenticity of the originals of such
latter documents. As to questions of fact material to such
opinions we have, when relevant facts were not independently
established, relied upon representations and certificates of the
Obligors and their officers.
Based upon the foregoing and subject to the comments
and qualifications set forth below, we are of the opinion that
each of the Credit Agreement, each of the Subsidiary Loan
Agreements identified on Annex A hereto, the Guarantee Agreement
and the Security Agreement constitutes the valid and binding
obligation of each Obligor party thereto enforceable against such
Obligor in accordance with its terms, that each of the Infinity
Term Loan Notes, the Infinity Acquisition Loan Notes, the
Revolving Credit Notes and the Money Market Notes when executed
and delivered for value by the Company will constitute the valid
and binding obligation of the Company enforceable in accordance
with its terms and that each of the HBC Term Loan Notes, each of
</page>
<PAGE>
- 3 -
the Infinity of Boston Term Loan Notes, each of the Infinity of
California Term Loan Notes and each of the SBC Term Loan Notes
when executed and delivered for value by HBC, Infinity of Boston,
Infinity of California and SBC, respectively, will constitute the
valid and binding obligation of HBC, Infinity of Boston, Infinity
of California and SBC, respectively, enforceable in accordance
with its terms, except, in each case, as limited by (a)
bankruptcy, insolvency, reorganization, moratorium or other
similar laws of general applicability affecting the enforcement
of creditors' rights and (b) the application of general
principles of equity (regardless of whether considered in a
proceeding in equity or at law), and except that we express no
opinion as to (i) Section 3.02(c) of the Guarantee Agreement,
(ii) Section 2.07 of the Guarantee Agreement, (iii) Section 2.08
of the Guarantee Agreement or (iv) the effect of the law of any
jurisdiction (other than the State of New York) where any Bank
(including any of its Applicable Lending Offices) may be located
which limits rates of interest which may be charged or collected
by such Bank. We express no opinion as to the effect of Federal
and State laws regarding fraudulent conveyances, or of provisions
of State laws restricting dividends, loans or other distributions
by a corporation or for the benefit of its stockholders, on the
validity or enforceability of any of the Basic Documents. In
addition, we express no opinion as to (i) whether a Federal or
State court outside of the State of New York would give effect to
the choice of New York law provided for in the Credit Agreement,
the HBC Term Loan Agreement, the Infinity of Boston Term Loan
Agreement, the Infinity of California Term Loan Agreement, the
SBC Term Loan Agreement, the Guarantee Agreement, the Security
Agreement and the Notes, (ii) the second sentence of Section
11.10 of the Credit Agreement, the second sentence of Section
10.08 of the HBC Term Loan Agreement, the second sentence of
Section 10.08 of the Infinity of Boston Term Loan Agreement, the
second sentence of Section 10.08 of the Infinity of California
Term Loan Agreement, the second sentence of Section 10.08 of the
SBC Term Loan Agreement, the second sentence of Section 4.08 of
the Guarantee Agreement and the first sentence of Section 5.13 of
the Security Agreement, insofar as each such sentence relates to
the subject matter jurisdiction of the United States District
Court for the Southern District of New York to adjudicate any
controversy related to the Credit Agreement, the HBC Term Loan
Agreement, the Infinity of Boston Term Loan Agreement, the
Infinity of California Term Loan Agreement, the SBC Term Loan
Agreement, the Guarantee Agreement, the Security Agreement or the
Notes, (iii) the waiver of inconvenient forum set forth in
Section 11.10 of the Credit Agreement, Section 10.08 of the HBC
Term Loan Agreement, Section 10.08 of the Infinity of Boston Term
Loan Agreement, Section 10.08 of the Infinity of California Term
Loan Agreement, Section 10.08 of the SBC Term Loan Agreement,
Section 4.08 of the Guarantee Agreement and Section 5.13 of the
Security Agreement with respect to proceedings in the United
States District Court for the Southern District of New York,
</page>
<PAGE>
- 4 -
(iv) Section 11.11 of the Credit Agreement, Section 10.09 of the
HBC Term Loan Agreement, Section 10.09 of the Infinity of Boston
Term Loan Agreement, Section 10.09 of the Infinity of California
Term Loan Agreement, Section 10.09 of the SBC Term Loan
Agreement, Section 4.09 of the Guarantee Agreement and
Section 5.14 of the Security Agreement, or (v) the right, title
or interest of any Obligor in or to any Properties in which any
Liens are purported to be created by the Security Agreement or
the perfection or priority of any such Liens. Finally, we wish
to point out that (x) the obligations of the Obligors under the
Security Agreement may be subject to possible limitations upon
the exercise of remedial or procedural provisions contained in
the Security Agreement, provided that, subject to clause (a)
above, such limitations do not, in our opinion, make the remedies
and procedures which will be afforded to the Agents and the Banks
inadequate for the practical realization of the substantive
benefits intended to be provided to the Agents and the Banks by
the Security Agreement, (y) provisions of the Credit Agreement,
the HBC Term Loan Agreement, the Infinity of Boston Term Loan
Agreement, the Infinity of California Term Loan Agreement, the
SBC Term Loan Agreement, the Guarantee Agreement and the Security
Agreement which permit the Agents or any Bank to take action or
make determinations may be subject to a requirement that such
action by taken or such determinations be made on a reasonable
basis and in good faith and (z) a holder of a Note may, under
certain circumstances, be called upon to provide the outstanding
amount of the Loans evidenced thereby.
In connection with the above, we wish to point out that
provisions of the Credit Agreement, the HBC Term Loan Agreement,
the Infinity of Boston Term Loan Agreement, the Infinity of
California Term Loan Agreement, the SBC Term Loan Agreement, the
Guarantee Agreement or the Security Agreement which permit any
Agent or any Bank to take action or make determinations, or to
benefit from indemnities and similar undertakings of the
Obligors, may be subject to a requirement that such action be
taken or such determinations be made, and that any action or
inaction by an Agent or a Bank which may give rise to a request
for payment under such an undertaking be taken or not taken, on a
reasonable basis and in good faith.
We are members of the bar of the State of New York and
we do not herein intend to express any opinion as to any matters
governed by any laws other than the law of the State of New York
and the Federal law of the United States of America.
Very truly yours,
PDR/WFC
</page>
<PAGE>
ANNEX A
Subsidiary Loan Agreements
1. Amended and Restated Loan Agreement dated as of December 22,
1994 between Hemisphere Broadcasting Corporation and The
Chase Manhattan Bank (National Association), as
Administrative Agent.
2. Amended and Restated Loan Agreement dated as of December 22,
1994 between Sagittarius Broadcasting Corporation and The
Chase Manhattan Bank (National Association), as
Administrative Agent.
3. Amended and Restated Loan Agreement dated as of December 22,
1994 between Infinity Broadcasting Corporation of Boston and
The Chase Manhattan Bank (National Association), as
Administrative Agent.
4. Amended and Restated Loan Agreement dated as of December 22,
1994 between Infinity Broadcasting Corporation of California
and The Chase Manhattan Bank (National Association), as
Administrative Agent.
</page>
<PAGE>
EXHIBIT H
[Form of Borrowing Notice]
INFINITY BROADCASTING CORPORATION
Borrowing Notice
Request for ______________ to be made to _________**
on __________, 19__ (the "Borrowing Date").
______________
This Notice is delivered pursuant to Section 6.03(b) of
the Second Amended and Restated Credit Agreement dated as of
December 22, 1994, (as modified and supplemented and in effect
from time to time, the "Credit Agreement") between Infinity
________________
Broadcasting Corporation (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
America Illinois, Bank of Montreal, The Bank of New York,
Chemical Bank, Compagnie Financiere de CIC et de l'Union
Europeenne, The First National Bank of Boston and National
Westminster Bank USA as Co-Agents for the Banks, and Chemical
Bank, as Collateral Agent for the Banks. Terms used herein shall
have the respective meanings assigned to them in the Credit
Agreement.
This Notice and the certifications made herein have
been completed in accordance with the applicable provisions of
the Credit Agreement as at the date set forth below.
I. Notice and Request of Borrowing:
_______________________________
The Company hereby requests the Banks to make
____________* to ___________ on the Borrowing Date and upon the
terms specified below:
A. The aggregate amount of the requested Loans is
$__________ million.
___________________________________________
* Insert Class of Loans requested i.e, Infinity Acquisition
___
Loans, Revolving Credit Loans or Subsidiary Acuisition Loans.
** Insert party to which Loans are being made, i.e., "the
___
Company" and/or the name of any Subsidiary Borrower.
Borrowing Notice
________________
</page>
<PAGE>
- 2 -
B. The requested Loans shall be /____/ Base Rate Loans
/____/ Eurodollar Loans
C. If any of the requested Loans are Eurodollar Loans, the
initial Interest Period for the requested Loans shall
be _______ months.
D. Please wire the proceeds of the requested Loans to:
________________________
________________________
________________________
________________________
E. To the best knowledge of the undersigned Senior Officer
of the Company and subject to the provisions of the
Credit Agreement:
(1) the rate of interest applicable to the requested
Loans is:
/____/ __________ (the Base Rate) plus
__________ (the Applicable Margin for
Base Rate Loans)
/____/ ___________ (the Eurodollar Rate) plus
____ (the Applicable Margin) for
Eurodollar Loans), and
(2) after giving effect to the making of the requested
Loans, the aggregate outstanding principal amount
of all Loans made under the Credit Agreement and
the Subsidiary Loan Agreements will be $_____
million.
II. Certification as to Compliance with Conditions Precedent to
All Loans
The Company hereby certifies to the Banks that:
A. As of the date hereof and the Borrowing Date, no
Default has occurred and is continuing, and after
the making of the requested Loans and giving
effect to the intended use of the proceeds thereof
Borrowing Notice
________________
</page>
<PAGE>
- 3 -
by _____________________, no Default will have
occurred and be continuing.
B. As of the date hereof and the Borrowing Date, and
after the making of the requested Loans and giving
effect to the intended use of the proceeds thereof
by ____________________, the representations and
warranties made by the Obligors in Section 7 of
the Credit Agreement and in each of the other
Basic Documents to which such Obligor is a party,
will be true in all material respects on and as of
the date hereof and the Borrowing Date with the
same force and effect as if made on and as of the
date hereof and the Borrowing 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).
C. After the making of the requested Loans and giving
effect to the intended use of the proceeds thereof
by _________________**, [the aggregate amount of
Indebtedness (as defined in the Senior
Subordinated Indenture) of the Company and its
Restricted Subsidiaries (as defined in the Senior
Subordinated Indenture) will not exceed
$490,000,000 (the maximum amount of Permitted
Indebtedness under and as defined in the Senior
Subordinated Indenture)/ the Company will not be
in violation of its obligations under Section 4.11
of the Senior Subordinated Indenture. Set forth
on Annex A hereto are calculations demonstrating
that after the making of the requested Loans and
giving effect of the intended use of the proceeds
thereof by ___________**, Indebtedness (as defined
in the Senior Subordinated Indenture) of the
Company and its Restricted Subsidiaries (as
defined in the Senior Subordinated Indenture) does
not exceed seven times Pro Forma Operating Cash
Flow (as defined in the Senior Subordinated
Indenture) for the four full fiscal quarters of
the Company immediately preceding the Borrowing
Date plus $60 million and in any event does not
exceed the greater of (1) Permitted Indebtedness
(as defined in the Senior Subordinated Indenture)
and (2) seven times Operating Cash Flow (as
___________________________________________
** Insert party to which Loans are being made, i.e., "the
____
Company" and/or the name of any Subsidiary Borrower.
** Insert party to which Loans are being made, i.e., "the
___
Company" and/or the name of any Subsidiary Borrower.
Borrowing Notice
________________
</page>
<PAGE>
- 4 -
defined in the Senior Subordinated Indenture) for
the four full fiscal quarters of the Company
immediately preceding the Borrowing Date plus $60
million].
Very truly yours,
Name:________________________
Title:________________________
of Infinity Broadcasting
Corporation
Date:___________________
___________________________________________
** If the Senior Subordinated Notes are refinanced with
Permitted Replacement Subordinated Debt as permitted by
Section 8.07(c) of the Credit Agreement, insert analogous
certifications and annex analogous calculations
demonstrating compliance with the terms of the Subordinated
Debt Documents evidencing and governing such Permitted
Replacement Subordinated Debt.
Borrowing Notice
________________
</page>
<PAGE>
EXHIBIT I
[Form of Tax Allocation Agreement]
TAX ALLOCATION AGREEMENT
TAX ALLOCATION AGREEMENT dated as of _______________,
____ between INFINITY BROADCASTING CORPORATION, a Delaware
corporation (the "Company") and [NAME OF UNRESTRICTED
SUBSIDIARY], a ________ corporation ("[NEWCO]").
_____
[NEWCO] and the Company are members of an affiliated
group of corporations (collectively, the "Group"), as defined in
Section 1504 of the Internal Revenue Code of 1986 (as amended,
the "Code"), of which the Company is the common parent, and file
consolidated federal income tax returns pursuant to Section
1501(a) of the Code. In addition, [NEWCO] and the Company
(together with subsidiaries of [NEWCO] and the Company) may be
eligible to file consolidated or combined state or local income
or franchise tax returns and may wish to file consolidated or
combined state or local income or franchise tax returns. The
Company and [NEWCO] desire to allocate among themselves the
benefits and burdens which arise from filing of consolidated
federal income tax returns and which may arise from filing of
consolidated or combined state and local income tax returns.
The Company, certain lenders (the "Banks"), The Chase
_____
Manhattan Bank (National Association), as administrative agent
for the Banks (the "Administrative Agent"), Bank of America
____________________
Illinois, Bank of Montreal, The Bank of New York, Chemical Bank,
Compagnie Financiere de CIC et de l'Union Europeenne, The First
National Bank of Boston and National Westminster Bank USA, as co-
agents for the Banks (the "Co-Agents"), and Chemical Bank, as
_________
collateral agent for the Banks (the "Collateral Agent"), have
________________
executed and delivered a Second Amended and Restated Credit
Agreement dated as of December 22, 1994 (as modified and
supplemented and in effect from time to time, the "Credit
______
Agreement"), providing, subject to the terms and conditions
_________
thereof, for loans to be made by the Banks to the Company and
certain of its subsidiaries (other than [NEWCO] and its
subsidiaries) in an aggregate principal amount not exceeding
$700,000,000. It is a condition to the designation of [NEWCO]
and each of its subsidiaries as an "Unrestricted Subsidiary"
under and as defined in the Credit Agreement that the Company and
[NEWCO] enter into this Agreement.
Tax Allocation Agreement
________________________
</PAGE>
<PAGE>
- 2 -
Accordingly, the Company and [NEWCO] hereby agree as
between themselves and for the benefit of the Administrative
Agent, the Co-Agents, the Collateral Agent and the Banks as
follows:
Section 1. Tax Allocation Provisions, Etc.
______________________________
1.01 Consolidated Tax Returns. The Company will file
________________________
a consolidated federal income tax return for all taxable periods
for which the Group is permitted to file such a return. The
Company and [NEWCO] agree (and agree to cause their respective
subsidiaries) to file such consents, elections and other
documents and to take such other action as may be necessary or
appropriate to carry out the purposes of this Section 1.01.
1.02 Payment of Tax Liability. The Company will
________________________
timely pay the Group's Federal income tax liability. For each
period during which [NEWCO] and its subsidiaries (together, the
"[NEWCO] Group") are included in a consolidated federal income
_____________
tax return with the Company, [NEWCO] shall pay to the Company an
amount equal to the federal income tax liability that [NEWCO], on
behalf of the [NEWCO] Group, would pay (taking into account net
operating loss carryforwards and carrybacks and other deductions
and credits that would have been available to the NEWCO Group and
would not have been previously utilized had the members of the
NEWCO Group never been members of the Group, and including any
liability for alternative minimum taxes, for all periods
beginning after ________ ___, 1994) if [NEWCO] and its
subsidiaries were filing their federal income tax returns as a
separate group for that period and had filed tax returns as a
separate group for all other periods. In computing its federal
income taxes, the [NEWCO] Group shall use the elections, take
deductions and credits and adopt methods of reporting income and
expense that were actually used, taken and adopted by the Company
and its subsidiaries in the Company's consolidated income tax
return.
1.03 Estimated Taxes. Payments by [NEWCO] due
_______________
pursuant to Section 1.02 hereof shall be made on an estimated
basis, such estimates being calculated, to the extent not
inconsistent with said Section 1.02, in accordance with the
conventions used by the Company to compute its estimated tax.
Estimated payments shall be made prior to the due date of the
corresponding estimated payments of the Company. The Company
shall calculate the amount payable by the [NEWCO] Group pursuant
to this Section 1.03 and shall provide [NEWCO and its
subsidiaries] with at least 10 day's notice of any payments due.
The difference, if any, between the liability of the [NEWCO]
Group to the Company for any taxable period, computed in
Tax Allocation Agreement
________________________
</PAGE>
<PAGE>
- 3 -
accordance with Section 1.02 hereof, and the estimated payments
made by [NEWCO] to the Company pursuant to this Section 1.03
shall be payable by [NEWCO] and/or refundable to the Company
prior to the date of filing of the consolidated federal income
tax returns of the Group for the taxable period. The Company
shall calculate such amount and, if any amount is payable by
[NEWCO] to the Company, shall provide [NEWCO] with at least 10
day's notice of the amount due.
1.04 Refunds. If on the basis of the computation made
_______
by [NEWCO] in accordance with Section 1.02 hereof, the [NEWCO]
Group (treated as a separate group) would as a result of a net
operating loss carryback or other deduction or credit have been
entitled to a refund of federal income taxes, the Company shall
pay [NEWCO] the amount of that refund at the time that, if a
refund has been applied for, the Internal Revenue Service makes
the refund and, if a refund has not been applied for, at the time
the Internal Revenue Service would have made the refund were the
NEWCO Group a separate group that had timely applied for such
refund. For example, if the [NEWCO] Group (treated as a separate
group) has a net operating loss that, on a separate return basis,
the separate group could carry back and be entitled to a refund,
the Company shall pay [NEWCO] the amount of the refund even if no
refund was actually received from the Internal Revenue Service
because the net operating loss was used against income of the
Company or because no taxes were paid in a prior year because of
losses of the Company. Conversely, if the [NEWCO] Group (treated
as a separate group) has a net operating loss that, on a separate
return basis, it could not carry back but would have to carry
forward, it shall not be entitled to a refund until the [NEWCO]
Group could, on a separate basis, use the carryforward even if,
as a result of the Company's income the Group in fact carried
back the loss and obtained a refund. Notwithstanding the
foregoing, [NEWCO] shall not be entitled to any refund in excess
of the amounts it has paid pursuant to Section 1.02 hereof, as
modified by Section 1.05 hereof.
1.05 Redeterminations. In the event of any adjustment
________________
to the tax return of the Group as filed (by reason of an amended
return, a claim for refund or an audit by the Internal Revenue
Service but not as a result of a net operating loss carryback),
the liability of the Company and [NEWCO] shall be redetermined to
give effect to any such adjustment as if it had been made as part
of the original computation of tax liability. Payments between
the Company and [NEWCO] shall be made to reflect the results of
this redetermination. The payments shall be made promptly before
any corresponding payments to the Internal Revenue Service or
promptly after the receipt of any refund from the Internal
Revenue Service. Any payments shall include interest and
Tax Allocation Agreement
________________________
</PAGE>
<PAGE>
- 4 -
penalties equal to the amount actually paid to, or received from,
the Internal Revenue Service with respect to the redetermination
of tax liabilities. Should the adjustment not result in a
payment to or refund from the Internal Revenue Service, the
timing and amount of payments between the Company and NEWCO shall
be determined as if the NEWCO Group were a separate group that
had made such adjustment and made such payment or received such
refund. The Company shall calculate the amounts of any payments
and shall give [NEWCO] at least 10 days' notice of any amounts
payable by [NEWCO].
1.06 State and Local Taxes. If the Company, any
_____________________
affiliate of the Company (other than [NEWCO] and the subsidiaries
of [NEWCO]) or [NEWCO] and the subsidiaries of NEWCO, or any of
them, are eligible, but not required, to file consolidated or
combined state or local income or franchise tax returns, the
Company shall determine, in its sole discretion, whether to file
any such returns for state or local income or franchise taxes
based on or in respect of net income or gross receipts. If the
Company or any affiliate of the Company (other than [NEWCO] and
the subsidiaries of [NEWCO]), together with NEWCO or any of its
subsidiaries, file consolidated or combined returns for state or
local income or franchise taxes based on or in respect of net
income or gross receipts, [NEWCO] shall pay to the Company (or
the subsidiary of the Company paying such tax) an amount equal to
the amount of state or local income or franchise tax that [NEWCO]
(or any subsidiary of NEWCO joining such return) would pay as a
separate corporation with respect to such returns. The Company
(or any subsidiary of the Company paying such tax) shall pay to
[NEWCO] (or any subsidiary of NEWCO joining such return) the
amount of any refunds [NEWCO] (or each of such subsidiaries)
would have received from any state or local authority were it a
separate corporation. The computations of such amounts, their
payments, any refunds, all elections, and any adjustments shall
be treated analogously to the treatment of Federal income taxes
in Sections 1.02 through 1.05 hereof.
1.07 Indemnification. The Company shall indemnify
_______________
[NEWCO] and its subsidiaries for any Federal, state or local tax
liability of the Company or any affiliate of the Company other
than [NEWCO] and its subsidiaries, whether imposed pursuant to
Treas. Reg. 1.1502-6, any state or local counterparts to that
provision or otherwise. Any indemnification payments are to be
made on an after-tax basis within 10 days of [NEWCO] notifying
the Company of its liability.
1.08 Information. [NEWCO] shall provide the Company
___________
with any information the Company may need in connection with the
Tax Allocation Agreement
________________________
</PAGE>
<PAGE>
- 5 -
Company's Federal income tax return and with any state or local
income or franchise tax consolidated or combined returns. The
Company shall prepare, or have prepared at its expense, the
Federal consolidated income tax return and any state or local
consolidated or combined income or franchise tax returns. The
Company and [NEWCO] shall cooperate with each other in the
preparation of all Federal, state or local income tax returns.
1.09 Audits. The Company shall act as the agent of
______
[NEWCO] and its subsidiaries in the event of any audit of the
Company's Federal consolidated income tax return and any state or
local consolidated or combined income or franchise tax returns
and in any administrative or judicial proceedings with respect to
such returns. The Company and [NEWCO] shall cooperate with each
other in such audits, administrative or judicial proceedings.
1.10 Effect of Deconsolidation. This Agreement shall
_________________________
terminate as to federal income taxes and be of no force and
effect with respect to a member of the NEWCO Group immediately
upon such member ceasing to be a member of the Group, and shall
terminate as to state or local income taxes or franchise taxes
and be of no force and effect with respect to NEWCO or any of its
subsidiaries that had filed any combined or consolidated return
with respect to such taxes when NEWCO or such subsidiary no
longer joins in the filing of such return, provided, however,
that such person's obligation to pay amounts and right to receive
amounts pursuant to this Agreement with respect to tax periods
for which it was a member of the Group (with respect to Federal
income taxes) or joined in the filing of such return (with
respect to such state or local taxes) shall not be terminated.
1.11 No Duplicative Payments. No duplicative payments
_______________________
shall be made to or from NEWCO or a subsidiary of NEWCO as a
result of either or both of them being parties, together with the
Company, to this Agreement or another tax allocation agreement in
the form of this Agreement.
Section 2. Third Party Beneficiaries. Each of the
_________________________
Company and [NEWCO], for itself and its successors, covenants and
agrees that the provisions of this Agreement are for the benefit,
inter alia, of the Banks, the Administrative Agent, the Co-Agents
_____ ____
and the Collateral Agent and their respective successors and
assigns and each of such persons is made an obligee hereunder and
any one or more of them may enforce such provisions.
Section 3. Representations and Warranties. The
______________________________
Company and [NEWCO] (each being herein called an "Obligor")
_______
hereby represent and warrant to the other that:
Tax Allocation Agreement
________________________
</PAGE>
<PAGE>
- 6 -
3.01 Corporate Existence. Such Obligor is a
___________________
corporation duly organized and validly existing under the laws of
the jurisdiction of its incorporation.
3.02 No Breach. None of the execution and delivery of
_________
this Agreement, the consummation of the transactions contemplated
herein and compliance with the terms and provisions hereof will
conflict with or result in a breach of, or require any consent
under, the charter or by-laws of such Obligor, or any applicable
law or regulation, or any order, writ, injunction or decree of
any court or governmental authority or agency, or any agreement
or instrument to which such Obligor or any of its subsidiaries is
a party or by which any of them is bound or to which any of them
is subject, or constitute a default under any such agreement or
instrument, or result in the creation or imposition of any lien
upon any of the revenues or assets of such Obligor or any of its
subsidiaries pursuant to the terms of any such agreement or
instrument.
3.03 Corporate Action. Such Obligor has all necessary
________________
corporate power and authority to execute, deliver and perform its
obligations under this Agreement; the execution, delivery and
performance by such Obligor of this Agreement have been duly
authorized by all necessary corporate action on its part; and
this Agreement has been duly and validly executed and delivered
by such Obligor and constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms.
3.04 Approvals. No authorizations, approvals or
_________
consents of, and no filings or registrations with, any
governmental or regulatory authority or agency are necessary for
the execution, delivery or performance by such Obligor of this
Agreement or for the validity or enforceability thereof.
Section 4. Miscellaneous.
_____________
4.01 No Impairment. No right, power or remedy of any
_____________
Bank, the Administrative Agent, any Co-Agent or the Collateral
Agent hereunder shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of [NEWCO] or
the Company.
4.02 Governing Law. This Agreement shall be governed
_____________
by, and construed in accordance with, the law of the State of New
York.
4.03 Waivers, Etc. The terms of this Agreement may be
____________
waived, altered or amended only by an instrument in writing duly
executed by the Company and [NEWCO] (with the consent of the
Tax Allocation Agreement
________________________
</PAGE>
<PAGE>
- 7 -
Administrative Agent acting with the consent of the "Majority
Banks" under and as defined in the Credit Agreement). Any such
amendment or waiver shall be binding upon the Company, [NEWCO],
the Administrative Agent and each Bank.
4.04 Successors and Assigns. This Agreement shall be
______________________
binding upon and inure to the benefit of the respective
successors and assigns of the Company, [NEWCO], the
Administrative Agent, each Co-Agent, the Collateral Agent and
each Bank.
4.05 Counterparts. This Agreement may be executed in
____________
any number of counterparts, all of which taken together shall
constitute one and the same instrument and either of the parties
hereto may execute this Agreement by signing any such
counterpart.
4.06 Severability. If any provision hereof is invalid
____________
and unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, (a) the other provisions hereof shall
remain in full force and effect in such jurisdiction and shall be
liberally construed in favor of the Company, the Administrative
Agent, each Co-Agent, the Collateral Agent and each Bank in order
to carry out the intentions of the parties hereto as nearly as
may be possible and (b) 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.
Tax Allocation Agreement
________________________
</PAGE>
<PAGE>
- 8 -
IN WITNESS WHEREOF, the parties hereto have caused this
Tax Allocation Agreement to be duly executed and delivered as of
the day and year first above written.
INFINITY BROADCASTING CORPORATION
By___________________________
Name:
Title:
[NAME OF UNRESTRICTED SUBSIDIARY]
By___________________________
Name:
Title:
Tax Allocation Agreement
________________________
</PAGE>
<PAGE>
EXECUTION COUNTERPART
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of
December 22, 1994 between INFINITY BROADCASTING CORPORATION, a
Delaware corporation ("Infinity"), and INFINITY BROADCASTING
CORPORATION OF CALIFORNIA, a Delaware corporation and wholly
owned subsidiary of Infinity (the "Borrower").
WHEREAS, Infinity, certain lenders (the "Banks"), The
Chase Manhattan Bank (National Association), as administrative
agent for the Banks (in such capacity, the "Administrative
Agent"), Bank of America Illinois, Bank of Montreal, The Bank of
New York, Chemical Bank, Compagnie Financiere de CIC et de
l'Union Europeene, The First National Bank of Boston and National
Westminster Bank USA, as co-agents for the Banks (in such
capacity, the "Co-Agents"), and Chemical Bank, as collateral
agent for the Banks (in such capacity, the "Collateral Agent"
and, together with the Administrative Agent, and the Co-Agents,
the "Agents") are parties to a Second Amended and Restated Credit
Agreement dated as of December 22, 1994 (as modified and
supplemented and in effect from time to time, the "Credit
Agreement") providing for loans to be made by the Banks to
Infinity and certain of its subsidiaries in an aggregate
principal amount not exceeding $700,000,000; and
WHEREAS, pursuant to the Existing Credit Agreement (as
defined in the Credit Agreement), the Banks have made Acquisition
Loans under and as defined in the Existing Credit Agreement to
Infinity; and
WHEREAS, pursuant to Section 2.01(a)(iv) of the Credit
Agreement, on the Effective Date (as defined in the Credit
Agreement) Acquisition Loans under and as defined in the Existing
Credit Agreement (as so defined) made to Infinity in an aggregate
principal amount equal to $31,000,000 will be converted to
Infinity of California Term Loans (as so defined) (such Loans as
so converted are herein referred to as the "Converted Loans");
and
WHEREAS, it is a condition to such conversion pursuant
to said Section 2.01(a)(iv) that Infinity and the Borrower
execute and deliver this Agreement providing for the assignment
of the Converted Loans from Infinity to the Borrower;
NOW THEREFORE, for good and valuable consideration,
Infinity and the Borrower hereby agree as follows:
Assignment Agreement
____________________
</page>
<PAGE>
- 2 -
ARTICLE I
ASSIGNMENT AND ASSUMPTION
Section 1.1 Assignment. Infinity hereby assigns to
the Borrower all of Infinity's rights and obligations with
respect to the Converted Loans (collectively, the "Assigned
Loans").
Section 1.2 Acceptance and Assumption. The Borrower
hereby accepts the assignment referred to in Section 1.1 and
assumes, confirms and agrees to perform and observe each and
every covenant, agreement, term, condition, obligation,
appointment, duty and liability of Infinity under (A) the Credit
Agreement with respect to the Assigned Loans arising prior to the
effectiveness of the assignment and assumption provided for
herein and (B) under the Amended and Restated Loan Agreement
dated as of December 22, 1994 (as modified and supplemented and
in effect from time to time, the "Subsidiary Loan Agreement")
between the Borrower and the Administrative Agent arising on and
after the effectiveness of the assignment and assumption provided
for herein.
ARTICLE II
MISCELLANEOUS
Section 2.1 Basic Document; Credit Document. This
Assignment and Assumption Agreement is a Basic Document under and
defined in the Credit Agreement. This Assignment and Assumption
Agreement is a Credit Document under and as defined in the
Subsidiary Loan Agreement.
Section 2.2 Successors and Assigns. This Agreement
shall be binding upon Infinity and the Borrower and their
respective successors and assigns and shall inure to the benefit
of, and be enforceable by each Agent and each Bank, and their
respective successors and assigns.
Section 2.3 Notices. All notices and other
communications provided for herein (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 each party at the
"Address for Notices" specified below its name on the signature
pages hereof. 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.
Assignment Agreement
____________________
</page>
<PAGE>
- 3 -
Section 2.4 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.
Section 2.5 Counterparts. This Agreement may be
executed in any number of counterparts, all of which together
shall constitute one and the same instrument and any of the
parties hereto may execute this Agreement by signing any such
counterpart.
Section 2.6 Amendments, Etc.. The terms of this
Agreement may be waived, altered or amended only by an instrument
in writing duly executed by Infinity and the Borrower and
consented to by the Administrative Agent with the consent of such
of the Banks as is required for such purpose under the Credit
Agreement.
Section 2.7 Governing Law. This Agreement shall be
governed by, and construed in accordance with, the law of the
State of New York.
Assignment Agreement
____________________
</page>
<PAGE>
- 4 -
IN WITNESS WHEREOF, Infinity and the Borrower have
caused this Assignment and Assumption Agreement to be duly
executed and delivered as of the day and year first above
written.
INFINITY BROADCASTING
CORPORATION
By __________________
Name:
Title:
Address for Notices:
Infinity Broadcasting Corporation
600 Madison Avenue
New York, NY 10022
Attention: Mel Karmazin
Telecopier No.: (212) 888-2959
Telephone No.: (212) 750-6400
INFINITY BROADCASTING
CORPORATION OF CALIFORNIA
By _________________
Name:
Title:
Address for Notices:
Infinity Broadcasting
Corporation of California
c/o Infinity Broadcasting Corporation
600 Madison Avenue
New York, NY 10022
Attention: Mel Karmazin
Telecopier No.: (212) 888-2959
Telephone No.: (212) 750-6400
Assignment Agreement
____________________
</page>
<PAGE>
- 5 -
ACCEPTED AND ACKNOWLEDGED:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
By ____________________
Name:
Title:
Address for Notices:
The Chase Manhattan Bank
(National Association),
as Administrative Agent
New York Agency
4 Chase Metrotech Center
13th Floor
Brooklyn, NY 11245
Telecopier No.: (718) 242-6900
Telephone No.: (718) 242-7970
Attention: Mary Murphy
with a copy to:
The Chase Manhattan Bank
(National Association)
One Chase Manhattan Plaza
New York, NY 10081
Telecopier No.: (212) 552-4905
Telephone No.: (212) 552-5116
Attention: John P. White
Assignment Agreement
____________________
</page>
<PAGE>
EXHIBIT K-1
[Form of Money Market Quote Request]
[Date]
To: The Chase Manhattan Bank (National Association),
as Administrative Agent
From: Infinity Broadcasting Corporation
Re: Money Market Quote Request
Pursuant to Section 2.03 of the Second Amended and Restated
Credit Agreement dated as of December 22, 1994 (the "Credit
Agreement") between Infinity Broadcasting Corporation, the
lenders named therein, The Chase Manhattan Bank (National
Association), as Administrative Agent, Bank of America Illinois,
Bank of Montreal, The Bank of New York, Chemical Bank, Compagnie
Financiere de CIC et de l'Union Europeene, The First National
Bank of Boston and National Westminster Bank USA, as Co-Agents
and Chemical Bank, as Collateral Agent, we hereby give notice
that we request Money Market Quotes for the following proposed
Money Market Borrowing(s) under an [Acquisition Loan
Commitment/Revolving Credit Commitment]:
Borrowing Quotation Interest
Date [*1] Date [*2] Amount[*3] Type [*4] Period [*5]
Terms used herein have the meanings assigned to them in the
Credit Agreement.
INFINITY BROADCASTING CORPORATION
By ______________________________
Name:
Title:
___________________
* All numbered footnotes appear on the last page of this
Exhibit.
Money Market Quote Request
__________________________
</page>
<PAGE>
- 2 -
___________________
[1] Shall be a Business Day.
[2] For use if a Set Rate in a Set Rate Auction is requested to
be submitted before the Borrowing Date.
[3] Each amount must be $10,000,000 or a larger multiple of
$1,000,000.
[4] Insert either "LIBO Margin" (in the case of LIBOR Market
Loans) or "Set Rate" (in the case of Set Rate Loans).
[5] One, two, three, six or twelve months or any other calendar
month thereafter, in the case of a LIBOR Market Loan or, in
the case of a Set Rate Loan, a period of at least 7 days
after the making of such Set Rate Loan and ending on a
Business Day.
Money Market Quote Request
__________________________
</page>
<PAGE>
EXHIBIT K-2
[Form of Money Market Quote]
[Date]
To: The Chase Manhattan Bank (National Association),
as Administrative Agent
Attention:
Re: Money Market Quote to
Infinity Broadcasting Corporation (the "Company")
This Money Market Quote is given in accordance with Section
2.03(c) of the Second Amended and Restated Credit Agreement dated
as of December 22, 1994 (the "Credit Agreement") between Infinity
Broadcasting Corporation, the lenders named therein, The Chase
Manhattan Bank (National Association), as Administrative Agent,
Bank of America Illinois, Bank of Montreal, The Bank of New York,
Chemical Bank, Compagnie Financiere de CIC et de l'Union
Europeene, The First National Bank of Boston and National
Westminster Bank USA, as Co-Agents and Chemical Bank, as
Collateral Agent. Terms defined in the Credit Agreement are used
herein as defined therein.
In response to the Company's invitation dated _______, 199_,
we hereby make the following Money Market Quote(s) on the
following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. We hereby offer to make Money Market Loan(s) in the
following principal amount(s), for the following Interest
Period(s) and at the following rate(s) under an [Acquisition
Loan Commitment/Revolving Credit Commitment]:
Borrowing Quotation Interest
Date [*1] Date [*2] Amount[*3] Type [*4] Period [*5] Rate [*6]
provided that the Company may not accept offers that would result
in the undersigned making Money Market Loans pursuant hereto in
___________________
* All numbered footnotes appear on the last page of this
Exhibit.
Money Market Quote Request
__________________________
</page>
<PAGE>
- 2 -
excess of $ _______ in the aggregate (the "Money Market Loan
Limit").
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set
forth in the Credit Agreement, irrevocably obligate[s] us to make
the Money Market Loan(s) for which any offer(s) (is/are)
accepted, in whole or in part (subject to the third sentence of
Section 2.03(e) of the Credit Agreement and any Money Market Loan
Limit specified above).
Very truly yours,
[NAME OF BANK]
By ______________________________
Name:
Authorized Officer
Dated: _____________, ____
___________________
[1] Shall be a Business Day.
[2] As specified in the related Money Market Quote Request.
[3] The principal amount bid for each Interest period may not
exceed the principal amount requested. Bids must be made
for at least $5,000,000 (or a larger multiple of
$1,000,000).
[4] Indicate "LIBO Margin" (in the case of LIBOR Market Loans)
or "Set Rate" (in the case of Set Rate Loans).
[5] One, two, three, six or twelve months or any other calendar
month thereafter, in the case of a LIBOR Market Loan or, in
the case of a Set Rate Loan, a period of at least 7 days
after the making of such Set Rate Loan and ending on a
Business Day, as specified in the related Money Market Quote
Request.
[6] For a LIBOR Market Loan, specify margin over or under the
London interbank offered rate determined for the applicable
Interest Period. Specify percentage (rounded to the nearest
1/10,000 of 1%) and specify whether "PLUS" or "MINUS". For
a Set Rate Loan, specify rate of interest per annum (rounded
to the nearest 1/10,000 of 1%).
Money Market Quote Request
__________________________
</page>
<PAGE>
INDEMNITY AGREEMENT
___________________
This Agreement is made as of the 18th day of October 1994,
____ _______
by and between Infinity Broadcasting Corporation, a Delaware
corporation (the "Corporation"), and Jeffrey Sherman, residing in
Larchmont, New York ("Sherman").
Sherman is currently serving as a Director of the
Corporation, and the Corporation desires Sherman to continue in
such capacity. Under the terms and conditions specified herein,
Sherman is willing to continue to serve the Corporation in such
capacity.
In addition to the indemnification of Sherman under the
Certificate of Incorporation and by-laws of the Corporation and
otherwise under applicable law, and as additional consideration
for Sherman's service, the Corporation has obtained director and
officer liability insurance to protect Sherman in connection with
such service.
Sherman has indicated his concern that indemnification under
the Corporation's Certificate of Incorporation and by-laws and
otherwise under applicable law may not be adequate to protect him
against the risks associated with his service to the Corporation.
In order to induce Sherman to continue to serve as a
director of the Corporation, and in consideration of such
continued service and other good and valuable consideration (the
receipt and sufficiency of which is hereby acknowledged by the
parties), the Corporation hereby agrees to indemnify Sherman as
follows:
1. The Corporation will pay on behalf of Sherman and his
executors, administrators and heirs, any amount which he is or
becomes legally obligated to pay because of any claim or claims
threatened or made against him because of any act or omission or
neglect or breach of duty, including any actual or alleged error
or misstatement or misleading statement, which he commits or
suffers while acting in his capacity as a director of the
Corporation, including any act or omission or neglect or breach
of duty that occurred prior to the effective date of this
Agreement, and solely because of his acting in such capacity.
The payments which the Corporation will be obligated to make
hereunder shall include, inter alia, damages, judgements,
__________
settlements and costs, cost of investigation and costs of defense
of legal actions, claims or proceedings and appeals therefrom,
and costs of attachment or similar bonds.
<PAGE>
</page>
- 2 -
2. If a claim under this Agreement is not paid by the
Corporation, or on its behalf, within ninety days after a written
claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover
the unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense
of prosecuting such claim.
3. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to
all of the rights of recovery of Sherman who shall execute all
documents and take all actions reasonably requested by the
Corporation to implement such right of subrogation.
4. The Corporation shall not be liable under this
Agreement to make any payment in connection with any claim made
against Sherman:
(a) for which payment is actually made to Sherman
under a valid and collectible insurance policy maintained by the
Corporation, except in respect of any excess beyond the amount of
payment under such insurance;
(b) based upon or attributable to Sherman or any
member of his immediate family directly or indirectly gaining in
fact any personal profit or advantage to which he was not legally
entitled;
(c) for any accounting of profits made from the
purchase or sale by Sherman of securities of the Corporation
within the meaning of Section 16(b) of the Securities Exchange
Act of 1934 and amendments thereto or similar provisions of any
state statutory law or common law;
(d) based upon or attributable to the dishonesty of
Sherman in respect of the matter as which he is seeking payment
hereunder, provided that Sherman shall be protected under this
Agreement as to any claims upon which suit may be brought against
him by reason of any alleged dishonesty on his part, unless a
judgment or other final adjudication thereof adverse to Sherman
shall establish that he committed acts of active and deliberate
dishonesty, with actual dishonest purpose and intent, which acts
were material to the cause of action so adjudicated;
(e) for bodily injury, sickness, disease or death of
any person, or damage to or destruction of any tangible property,
including loss of use thereof caused directly by Sherman; or
(f) for which indemnification under this Agreement is
determined by a final adjudication of a court of competent
jurisdiction to be unlawful and violative of public policy.
<PAGE>
</page>
- 3 -
5. Sherman shall give to the Corporation notice in writing
as soon as reasonably practicable of any claim made against him
for which indemnity will or could be sought under this Agreement.
Sherman will further notify and reasonably cooperate with the
Corporation in the selection of counsel (or will select counsel
of his own choice that is reasonably satisfactory to the
Corporation) and in the incurrence of costs and expenses in
defending or investigating any claim for which indemnity may be
sought hereunder. Sherman shall give the Corporation such
information and cooperation as it may reasonably require and as
shall be within Sherman power. Notice to the Corporation shall
be directed to the Corporation at 600 Madison Avenue, New York,
New York 10022, Attention: President (or such other address as
the Corporation shall designate in writing to Sherman), with a
copy to Rick Bohm, Debevoise & Plimpton, 875 Third Avenue, New
York, New York 10022.
6. This Agreement is being entered into pursuant to
section 145(f) of the General Corporation Law of Delaware and as
such is intended to be supplemental to any other rights to
indemnification available to Sherman and is not intended to be
restricted by the provisions of clauses (a) and (b) of such
section 145. Nothing herein shall be deemed to diminish or
otherwise restrict Sherman's right to indemnification under any
provision of the certificate of incorporation or by-laws of the
Corporation, under any statutory provisions or pursuant to any
director and officer liability insurance.
7. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware
without reference to principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and
year first above written.
INFINITY BROADCASTING CORPORATION
BY _______________________________
Title
_______________________________
Jeffrey Sherman
</page>
<PAGE>
SUBSIDIARIES OF
INFINITY BROADCASTING CORPORATION
Percentage of Ownership
by Infinity Broadcasting
Jurisdiction of Corporation ("Infinity")
Name of Subsidiary Incorporation or its Subsidiaries
------------------ --------------- ------------------------
The Audio House, Inc. California 100% by Infinity
Hemisphere Broadcasting Delaware 100% by Infinity
Corporation
Infinity Broadcasting Pennsylvania 100% by Infinity
Corporation of
Pennsylvania
Sagittarius Broadcasting New York 100% by Infinity
Corporation
Hit Radio, Inc. New York 80% by Sagittarius
Broadcasting
Corporation: 20% by
Infinity
C & W Land Corporation New Jersey 100% by Infinity
13 Radio Corporation Delaware 100% by Infinity
Infinity Broadcasting Delaware 100% by Infinity
Corporation of Illinois
Infinity Broadcasting Delaware 100% by Infinity
Corporation of Los Angeles
Infinity Broadcasting Delaware 100% by Infinity
Corporation of Maryland
Infinity Broadcasting Delaware 100% by Infinity
Corporation of Michigan
Infinity Broadcasting Delaware 100% by Infinity
Corporation of Florida
Infinity Broadcasting Delaware 100% by Infinity
Corporation of Washington,
D.C.
Infinity Ventures, Inc. Delaware 100% by Infinity
Infinity Broadcasting Delaware 100% by Infinity
Corporation of Tampa
- 1 -
</PAGE>
<PAGE>
Infinity Broadcasting Delaware 100% by Infinity
Corporation of Glendale
Infinity Broadcasting Delaware 100% by Infinity
Corporation of Texas
Infinity Broadcasting New York 100% by Infinity
Corporation of Baltimore Broadcasting
Corporation of
Maryland
Infinity WLIF, Inc. Maryland 100% by Infinity
Broadcasting
Corporation of
Baltimore
Infinity WLIF-AM, Maryland 100% by Infinity
Inc. Broadcasting
Corporation of
Baltimore
Infinity Broadcasting Delaware 100% by Infinity
Corporation of Atlanta
Infinity Broadcasting Delaware 100% by Infinity
Corporation of Boston
Infinity Broadcasting Delaware 100% by Infinity
Corporation of Chicago
Infinity Broadcasting Delaware 100% by Infinity
Corporation of Philadelphia
Infinity Broadcasting Delaware 100% by Infinity
Corporation of California
Infinity Network Inc. Delaware 100% by Infinity
Unistar Communication Delaware 100% by Infinity
Group, Inc.
Infinity Broadcasting Delaware 100% by Infinity
Corporation of Detroit
Infinity Broadcasting Delaware 100% by Infinity
Corporation (WPGC-AM), Inc
Infinity Broadcasting Delaware 100% by Infinity
Corporation of Dallas
- 2 -
</PAGE>
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
___________________________________________________
The Board of Directors
Infinity Broadcasting Corporation:
We consent to incorporation by reference in the registration statements No.
33-45977, No. 33-56938, No. 33-55577 and No. 33-55477 on Form S-8 of Infinity
Broadcasting Corporation of our report dated January 31, 1995, relating to the
consolidated balance sheets of Infinity Broadcasting Corporation and
subsidiaries as of December 31, 1993 and 1994, and the related consolidated
statements of operations, changes in stockholders' equity (deficiency), and
cash flows for each of the years in the three-year period ended December 31,
1994, and related schedule, which report appears in the December 31, 1994
annual report on Form 10-K of Infinity Broadcasting Corporation.
KPMG PEAT MARWICK LLP
New York, New York.
March 30, 1995
</page>
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000792863
<NAME> INFINITY BROADCASTING CORP
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-END> DEC-31-1994
<CASH> 7720
<SECURITIES> 0
<RECEIVABLES> 78084
<ALLOWANCES> 1535
<INVENTORY> 0
<CURRENT-ASSETS> 84805
<PP&E> 33017
<DEPRECIATION> 10729
<TOTAL-ASSETS> 562153
<CURRENT-LIABILITIES> 55928
<BONDS> 0
<COMMON> 67
0
0
<OTHER-SE> (25592)
<TOTAL-LIABILITY-AND-EQUITY> 562153
<SALES> 0
<TOTAL-REVENUES> 274120
<CGS> 0
<TOTAL-COSTS> 143249
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