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Exhibit 10.8
EXECUTION COPY
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$1,500,000,000
CREDIT AGREEMENT
among
INFINITY BROADCASTING CORPORATION,
THE SUBSIDIARY BORROWERS PARTIES HERETO,
CBS CORPORATION,
as Guarantor
THE LENDERS NAMED HEREIN,
THE CHASE MANHATTAN BANK,
as Documentation Agent,
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent,
and
BANK OF AMERICA, N.A. and THE TORONTO-DOMINION BANK,
as Syndication Agents
Dated as of December 10, 1999
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CHASE SECURITIES INC.,
as Sole Lead Arranger and Book Manager
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS..............................................................................................1
SECTION 1.1. Defined Terms..............................................................................1
SECTION 1.2. Terms Generally...........................................................................18
ARTICLE II.THE CREDITS.............................................................................................19
SECTION 2.1. Commitments...............................................................................19
SECTION 2.2. Revolving Credit Loans; Competitive Loans.................................................19
SECTION 2.3. Competitive Bid Procedure.................................................................20
SECTION 2.4. Revolving Credit Borrowing Procedure......................................................22
SECTION 2.5. Repayment of Loans........................................................................22
SECTION 2.6. Swingline Loans...........................................................................22
SECTION 2.7. Letters of Credit.........................................................................25
SECTION 2.8. Conversion and Continuation Options.......................................................28
SECTION 2.9. Fees......................................................................................29
SECTION 2.10. Interest on Loans; Eurodollar Tranches; Etc...............................................29
SECTION 2.11. Default Interest..........................................................................30
SECTION 2.12. Alternate Rate of Interest................................................................30
SECTION 2.13. Termination and Reduction of Commitments..................................................31
SECTION 2.14. Optional Prepayments of Revolving Credit Loans............................................31
SECTION 2.15. Reserve Requirements......................................................................32
SECTION 2.16. Indemnity.................................................................................33
SECTION 2.17. Pro Rata Treatment; Funding Matters; Evidence of Debt.....................................34
SECTION 2.18. Sharing of Setoffs........................................................................35
SECTION 2.19. Payments..................................................................................36
SECTION 2.20. Taxes.....................................................................................36
SECTION 2.21. Termination or Assignment of Commitments Under Certain Circumstances......................37
ARTICLE III. REPRESENTATIONS AND WARRANTIES.......................................................................38
SECTION 3.1. Corporate Existence.......................................................................38
SECTION 3.2. Financial Condition.......................................................................38
SECTION 3.3. Litigation................................................................................39
SECTION 3.4. No Breach, etc............................................................................39
SECTION 3.5. Corporate Action..........................................................................40
SECTION 3.6. Approvals.................................................................................40
SECTION 3.7. ERISA.....................................................................................40
SECTION 3.8. Taxes.....................................................................................40
SECTION 3.9. Investment Company Act....................................................................40
SECTION 3.10. Hazardous Materials.......................................................................40
SECTION 3.11. Material Subsidiaries.....................................................................40
SECTION 3.12. No Material Misstatements.................................................................41
SECTION 3.13. Ownership of Property.....................................................................41
SECTION 3.14. Intellectual Property.....................................................................41
SECTION 3.15. FCC Matters...............................................................................41
SECTION 3.16. Year 2000 Matters.........................................................................41
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ARTICLE IV. CONDITIONS OF EFFECTIVENESS AND LENDING................................................................42
SECTION 4.1. Effectiveness.............................................................................42
SECTION 4.2. Initial Loans to Subsidiary Borrowers.....................................................42
SECTION 4.3. All Credit Events.........................................................................43
ARTICLE V. COVENANTS...............................................................................................43
SECTION 5.1. Financial Statements......................................................................43
SECTION 5.2. Corporate Existence, Etc..................................................................45
SECTION 5.3. Insurance.................................................................................46
SECTION 5.4. Prohibition of Fundamental Changes........................................................46
SECTION 5.5. Limitation on Liens.......................................................................47
SECTION 5.6. Limitation on Subsidiary Indebtedness.....................................................49
SECTION 5.7. Consolidated Leverage Ratio...............................................................49
SECTION 5.8. Consolidated Coverage Ratio...............................................................49
SECTION 5.9. Use of Proceeds...........................................................................49
SECTION 5.10. Transactions with Affiliates..............................................................50
SECTION 5.11. Limitation on Negative Pledge Clauses.....................................................50
ARTICLE VI. EVENTS OF DEFAULT......................................................................................50
ARTICLE VII. THE AGENTS............................................................................................53
ARTICLE VIII. GUARANTEE............................................................................................55
SECTION 8.1. Guarantee.................................................................................55
SECTION 8.2. No Subrogation, etc.......................................................................55
SECTION 8.3. Amendments, etc. with respect to the Borrower Obligations.................................56
SECTION 8.4. Guarantee Absolute and Unconditional......................................................56
SECTION 8.5. Reinstatement.............................................................................57
SECTION 8.6. Payments..................................................................................57
SECTION 8.7. Infinity Guarantee........................................................................57
ARTICLE IX. MISCELLANEOUS..........................................................................................57
SECTION 9.1. Notices...................................................................................57
SECTION 9.2. Survival of Agreement.....................................................................58
SECTION 9.3. Binding Effect............................................................................58
SECTION 9.4. Successors and Assigns....................................................................58
SECTION 9.5. Expenses; Indemnity.......................................................................61
SECTION 9.6. Right of Setoff...........................................................................62
SECTION 9.7. APPLICABLE LAW............................................................................62
SECTION 9.8. Waivers; Amendment........................................................................62
SECTION 9.9. Entire Agreement..........................................................................63
SECTION 9.10. Waiver of Jury Trial......................................................................63
SECTION 9.11. Severability..............................................................................63
SECTION 9.12. Counterparts..............................................................................63
SECTION 9.13. Headings..................................................................................63
SECTION 9.14. Jurisdiction; Consent to Service of Process...............................................64
SECTION 9.15. Confidentiality...........................................................................64
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EXHIBITS
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Exhibit A Administrative Questionnaire
Exhibit B-1 Form of Competitive Bid Request
Exhibit B-2 Form of Notice of Competitive Bid Request
Exhibit B-3 Form of Competitive Bid
Exhibit B-4 Form of Revolving Credit Borrowing Request
Exhibit B-5 Form of Swingline Borrowing Request
Exhibit B-6 Form of Notice of Designated Letter of Credit
Exhibit B-7 Form of Subsidiary Borrower Designation
Exhibit B-8 Form of Subsidiary Borrower Request
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Confidentiality Agreement
Exhibit E-1 Omitted
Exhibit E-2 Omitted
Exhibit F Form of Closing Certificate
Exhibit G Form of Issuing Lender Agreement
SCHEDULES
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Schedule 1.1 Commitments; Addresses for Notices
Schedule 3.11 Material Subsidiaries
Schedule 5.5(m) Certain Infinity Assets
Schedule 5.6 Existing Infinity Indebtedness
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CREDIT AGREEMENT entered into as of December 10, 1999, among INFINITY
BROADCASTING CORPORATION, a Delaware corporation ("Infinity"), each Subsidiary
Borrower (as herein defined); CBS Corporation, a Pennsylvania corporation
("CBS"), as a guarantor; the lenders whose names appear on Schedule 1.1 hereto
or who subsequently become parties hereto as provided herein (the "Lenders");
BANK OF AMERICA, N.A. ("Bank of America") and THE TORONTO-DOMINION BANK
("Toronto Dominion"), as syndication agents for the Lenders (in such capacity,
the "Syndication Agents"); THE CHASE MANHATTAN BANK, a New York banking
corporation ("Chase"), as documentation agent for the Lenders; and XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation ("Xxxxxx"),
as administrative agent for the Lenders.
W I T N E S S E T H :
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WHEREAS, Infinity is a party to the Credit Agreement dated as of August
29, 1996, as amended by the First Amendment thereto dated as of January 29,
1997, the Second Amendment thereto dated as of March 21, 1997, the Third
Amendment thereto dated as of March 3, 1998 and the Fourth Amendment thereto
dated as of February 26, 1999 (the "Existing Credit Agreement"), CBS ("CBS"),
the Subsidiary Borrowers (as defined therein) parties thereto, the Lenders,
NationsBank, N.A. and The Toronto-Dominion Bank, as Syndication Agents, The
Chase Manhattan Bank, as Documentation Agent, and Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent;
WHEREAS, CBS and Infinity have requested the rights and obligations of
Infinity under the Existing Credit Agreement (and those of any Subsidiary
Borrower party to the Existing Credit Agreement that is a Subsidiary of
Infinity) be re-evidenced in this separate credit agreement pursuant to which
the Lenders shall provide extensions of credit to be used for general corporate
purposes, which extensions of credit shall enable (a) each Borrower (as herein
defined) to borrow loans on a revolving credit basis on and after the Closing
Date (as herein defined) and prior to the Revolving Credit Maturity Date (as
herein defined), (b) Infinity to request the issuance of Letters of Credit (as
herein defined) and (c) each Borrower to invite the Lenders to bid on an
uncommitted basis on short-term borrowings by such Borrower, in an aggregate
principal amount for all such extensions of credit not in excess of
$1,500,000,000; and
WHEREAS, the Lenders are willing to extend credit to the Borrowers on
the terms and subject to the conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR Loan" shall mean (a) any Revolving Credit Loan bearing interest at
a rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II and (b) any ABR Swingline Loan.
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"ABR Revolving Credit Loan" shall mean any Revolving Credit Loan which
is an ABR Loan.
"ABR Swingline Exposures" shall mean at any time the aggregate
principal amount at such time of the outstanding ABR Swingline Loans. The ABR
Swingline Exposure of any Lender at any time shall mean its Revolving Credit
Percentage of the aggregate ABR Swingline Exposures at such time.
"ABR Swingline Loan" shall have the meaning assigned to such term in
Section 2.6(a).
"Absolute Rate Loan" shall mean any Competitive Loan bearing interest
at a fixed percentage rate per annum (expressed in the form of a decimal rounded
to no more than four decimal places) specified by the Lender making such Loan in
its Competitive Bid.
"Administrative Agent" shall mean Xxxxxx, together with its affiliates,
as an arranger of the Commitments and as the administrative agent for the
Lenders under this Agreement, and any successor thereto pursuant to Article VII.
"Administrative Agent Fee Letter" shall mean the Fee Letter with
respect to this Agreement between CBS and the Administrative Agent, as amended,
supplemented or otherwise modified from time to time.
"Administrative Agent's Fees" shall have the meaning assigned to such
term in Section 2.9(c).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A hereto.
"Affiliate" shall mean, as to Infinity, any Person which directly or
indirectly controls, is under common control with or is controlled by Infinity.
As used in this definition, "control" (including, with correlative meanings,
"controlled by" and "under common control with") shall mean possession, directly
or indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise), provided that, in any event, any
Person which owns directly or indirectly 10% or more of the securities having
ordinary voting power for the election of directors or other governing body of a
corporation or 10% or more of the partnership or other ownership interests of
any other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person. Notwithstanding the
foregoing, (a) no individual shall be deemed to be an Affiliate of Infinity
solely by reason of his or her being an officer, director or employee of
Infinity or any of its Subsidiaries and (b) CBS and Infinity and their
Subsidiaries shall not be deemed to be Affiliates of each other.
"Agents" shall mean the collective reference to the Administrative
Agent, the Documentation Agent and the Syndication Agents.
"Aggregate LC Exposure" shall mean, at any time, the sum of (a) the
aggregate undrawn amount of all Letters of Credit outstanding at such time and
(b) the aggregate amount which has been drawn under Letters of Credit but for
which the applicable Issuing Lender or the Lenders, as the case may be, have not
been reimbursed by Infinity at such time.
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"Agreement" shall mean this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by the Lender serving as the Administrative Agent as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced as effective; and
"Federal Funds Effective Rate" shall mean, for any day, the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by it. If for
any reason the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance with
the terms thereof, the Alternate Base Rate shall be the Prime Rate until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Commitment Fee Rate" shall mean the "Applicable Commitment
Fee Rate" determined in accordance with the Pricing Grid set forth in Annex I
hereto.
"Applicable Eurodollar Margin" shall mean the "Applicable Eurodollar
Margin" determined in accordance with the Pricing Grid set forth in Annex I
hereto.
"Applicable LC Fee Rate" shall mean (a) with respect to Financial
Letters of Credit, the "Applicable Financial LC Fee Rate" determined in
accordance with the Pricing Grid set forth in Annex I hereto and (b) with
respect to Non-Financial Letters of Credit, the "Applicable Non-Financial LC Fee
Rate" determined in accordance with the Pricing Grid set forth in Annex I
hereto.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit C.
"Bank of America" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"Borrower" shall mean, as applicable, Infinity or the relevant
Subsidiary Borrower.
"Borrower Obligations" shall mean, with respect to each Borrower, the
unpaid principal of and interest on the Loans made to such Borrower (including,
without limitation, interest accruing after the maturity of the Loans made to
such Borrower and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to such Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding)
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and all other obligations and liabilities of such Borrower to the Administrative
Agent or to any Lender, whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, this Agreement.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in Dollar deposits in the
London interbank market.
"Capital Lease Obligations" of any Person shall mean the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock" shall mean any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants or options to purchase any of the
foregoing.
"CBS" shall have the meaning assigned to such term in the preamble to
this Agreement.
"CBS Consolidated EBITDA" shall mean, with respect to CBS and its
Consolidated Subsidiaries for any period, operating profit (loss) (excluding
that related to Discontinued Operations), plus other income (loss), plus
interest income, plus depreciation and amortization (excluding amortization
related to programming rights), excluding (a) gains (losses) on sales of assets
(except (I) gains (losses) on sales of inventory sold in the ordinary course of
business and (II) gains (losses) on sales of other assets if such gains (losses)
are less than $10,000,000 individually and less than $50,000,000 in the
aggregate during such period), and (b) other non-cash items (including (i)
provisions for losses and additions to valuation allowances, (ii) provisions for
restructuring, litigation and environmental reserves and losses on the
Disposition of businesses and (iii) pension settlement charges), in each case
determined for such period on a basis consistent with that reported in CBS's
Form 10-Q for the fiscal quarter ended September 30, 1998 filed with the SEC,
minus cash payments made during such period in respect of non-cash charges taken
during any previous period (excluding cash payments in respect of non-cash
charges taken prior to December 31, 1998).
"CBS Consolidated Leverage Ratio" shall mean, as of the last day of any
period, the ratio of CBS Consolidated Total Funded Indebtedness at such date to
CBS Consolidated EBITDA for such period.
"CBS Consolidated Total Funded Indebtedness" shall mean, with respect
to CBS and its Consolidated Subsidiaries at any date, the sum at such date of
(a) all Indebtedness for Borrowed Money (including commercial paper and unpaid
reimbursement obligations in respect of drawn letters of credit but otherwise
excluding letters of credit), (b) all indebtedness for the deferred purchase
price of Property or services (other than trade accounts payable and accruals in
the ordinary course of business), (c) all Capital Lease Obligations, (d) the
amount of any Indebtedness for Borrowed Money secured by receivables sold by
Infinity and its Consolidated Subsidiaries pursuant to a program established for
the purpose of financing such receivables, and (e) all Guarantees of
indebtedness of the type referred to in
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any of clauses (a) through (d) above (other than Guarantees of any such
indebtedness of CBS and its Consolidated Subsidiaries); provided, that, in no
event shall Indebtedness attributable to Discontinued Operations be included in
Consolidated Total Funded Indebtedness.
"Change of Control" shall mean that CBS, or following the Viacom
Merger, Viacom, shall have ceased to hold, directly or indirectly, beneficial
ownership (within the meaning of Rules 13d-3 and 13d-5 promulgated by the SEC
pursuant to the Exchange Act) of more than 50% of the outstanding shares of
voting and economic stock of Infinity.
"Chase" shall have the meaning assigned to such term in the preamble to
this Agreement.
"Closing Certificate" shall mean a certificate, substantially in the
form of Exhibit F.
"Closing Date" shall mean December 10, 1999.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Commitment" shall mean, with respect to each Lender, the commitment of
such Lender to make Revolving Credit Loans pursuant to Section 2.1, to make or
refund ABR Swingline Loans pursuant to Section 2.6 and to issue or participate
in Letters of Credit pursuant to Section 2.7, as set forth on Schedule 1.1, as
such Lender's Commitment may be permanently terminated or reduced from time to
time pursuant to Section 2.13 or changed pursuant to Section 9.4.
"Commitment Fee Calculation Amount" shall mean, as to any Lender at any
time, an amount equal to the excess, if any, of (a) such Lender's Commitment
over (b) the sum of (i) the aggregate principal amount of all Revolving Credit
Loans made by such Lender then outstanding, (ii) such Lender's LC Exposure at
such time and (iii) in the case of each Swingline Lender, the aggregate
principal amount of all Swingline Loans made by such Swingline Lender then
outstanding.
"Commitment Fees" shall mean all fees payable pursuant to Section
2.9(a).
"Communications Act" shall mean the Communications Act of 1934, as
amended.
"Competitive Bid" shall mean an offer to make a Competitive Loan
pursuant to Section 2.3.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made
pursuant to Section 2.3(b), (a) in the case of a Eurodollar Competitive Loan,
the Margin, and (b) in the case of an Absolute Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to Section
2.3 in the form of Exhibit B-1.
"Competitive Loan" shall mean a Loan from a Lender to a Borrower
pursuant to the bidding procedure described in Section 2.3. Each Competitive
Loan shall be a Eurodollar Competitive Loan or an Absolute Rate Loan.
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"Compliance Certificate" shall have the meaning assigned to such term
in Section 5.1.
"Confidential Information" shall have the meaning assigned to such term
in Section 9.15(a).
"Confidential Information Memorandum" shall mean the Information
Memorandum dated October 1999 and furnished to the Lenders.
"Confidentiality Agreement" shall mean a confidentiality agreement
substantially in the form of Exhibit D, with such changes as Infinity may
approve.
"Consolidated Coverage Ratio" shall mean, for any period, the ratio of
(a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
such period.
"Consolidated EBITDA" shall mean, with respect to Infinity and its
Consolidated Subsidiaries for any period, operating profit (loss), plus other
income (loss), plus interest income, plus depreciation and amortization
(excluding amortization related to programming rights), excluding (a) gains
(losses) on sales of assets (except (I) gains (losses) on sales of inventory
sold in the ordinary course of business and (II) gains (losses) on sales of
other assets if such gains (losses) are less than $10,000,000 individually and
less than $50,000,000 in the aggregate during such period), and (b) other
non-cash items (including (i) provisions for losses and additions to valuation
allowances, (ii) provisions for restructuring, litigation and environmental
reserves and losses on the Disposition of businesses and (iii) pension
settlement charges), in each case determined for such period on a basis
consistent with that reported in Infinity's Form 10-Q and 10-Q/A for the fiscal
quarter ended June 30, 1999 filed with the SEC, minus cash payments made during
such period in respect of non-cash charges taken during any previous period
(excluding cash payments in respect of non-cash charges taken prior to December
31, 1998).
"Consolidated Interest Expense" shall mean, for any period, the gross
interest expense of Infinity and its Consolidated Subsidiaries for such period,
computed and consolidated in accordance with GAAP, but excluding the
amortization of deferred financing charges for such period.
"Consolidated Leverage Ratio" shall mean, as of the last day of any
period, the ratio of Consolidated Total Funded Indebtedness at such date to
Consolidated EBITDA for such period.
"Consolidated Subsidiary" shall mean, as to any Person, each Subsidiary
of such Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be consolidated with the financial
statements of such Person in accordance with GAAP.
"Consolidated Total Funded Indebtedness" shall mean, with respect to
Infinity and its Consolidated Subsidiaries at any date, the sum at such date of
(a) all Indebtedness for Borrowed Money (including commercial paper and unpaid
reimbursement obligations in respect of drawn letters of credit but otherwise
excluding letters of credit), (b) all indebtedness for the deferred purchase
price of Property or services (other than trade accounts payable and accruals in
the ordinary course of business), (c) all Capital Lease Obligations, (d) the
amount of any Indebtedness for Borrowed Money secured by receivables sold by
Infinity and its Consolidated Subsidiaries pursuant to a program established for
the purpose of financing such receivables, and (e) all Guarantees of
indebtedness of the type referred to in any of clauses (a) through (d) above
(other than Guarantees of any such indebtedness of Infinity and its Consolidated
Subsidiaries).
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"Credit Event" shall mean the making of any Loan or the issuance of any
Letter of Credit hereunder (including the designation of a Designated Letter of
Credit as a "Letter of Credit" hereunder). It is understood that conversions and
continuations pursuant to Section 2.8 do not constitute "Credit Events".
"Debt Rating" shall mean the rating applicable to CBS's senior,
unsecured, non-credit-enhanced long-term indebtedness for borrowed money, as
assigned by either Rating Agency.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Designated Letters of Credit" shall mean each letter of credit issued
by an Issuing Lender that (a) is not a Letter of Credit hereunder at the time of
its issuance and (b) is designated on or after the Closing Date by Infinity,
with the consent of such Issuing Lender, as a "Letter of Credit" hereunder by
written notice to the Administrative Agent in the form of Exhibit B-6.
"Discontinued Operations" shall mean the operations classified as
"discontinued operations" pursuant to Accounting Principles Board Opinion No. 30
as presented in the quarterly report of CBS on Form 10-Q for the quarter ended
September 30, 1997 and filed with the SEC on December 14, 1997.
"Disposition" shall mean, with respect to any Property, any sale,
lease, assignment, conveyance, transfer or other disposition thereof; and the
terms "Dispose" and "Disposed of" shall have correlative meanings.
"Documentation Agent" shall mean Chase, together with its affiliates,
as an arranger of the Commitments and as the documentation agent for the Lenders
under this Agreement.
"Dollars" or "$" shall mean lawful money of the United States of
America.
"Environmental Laws" shall mean any and all Federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment, including, without limitation, ambient air, surface water, ground
water or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or industrial, toxic or hazardous substances
or wastes.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" shall mean, with respect to Infinity, any trade or
business (whether or not incorporated) that is a member of a group of which
Infinity is a member and which is treated as a single employer under Section 414
of the Code.
"Eurodollar Competitive Loan" shall mean any Competitive Loan which is
a Eurodollar Loan.
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"Eurodollar Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" shall mean, with respect to an Interest Period
pertaining to any Eurodollar Loan, the rate of interest determined on the basis
of the rate for deposits in Dollars for a period equal to such Interest Period
commencing on the first day of such Interest Period appearing on Page 3750 of
the Telerate Screen as of 11:00 A.M., London time, two Business Days prior to
the beginning of such Interest Period. In the event that such rate does not
appear on Page 3750 of the Telerate Screen (or otherwise on the Telerate
Service), the "Eurodollar Rate" shall be determined by reference to such other
publicly available service for displaying eurodollar rates as may be agreed upon
by the Administrative Agent and CBS or, in the absence of such agreement, the
"Eurodollar Rate" shall instead be the interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the average of the rates at which
Dollar deposits approximately equal in principal amount to (a) in the case of a
Eurodollar Tranche, the portion of such Eurodollar Tranche of the Lender serving
as Administrative Agent and (b) in the case of a Eurodollar Competitive Loan, a
principal amount that would have been the portion of such Loan of the Lender
serving as the Administrative Agent had such Loan been a Eurodollar Revolving
Credit Loan, and for a maturity comparable to such Interest Period, are offered
by the principal London offices of the Reference Banks (or, if any Reference
Bank does not at the time maintain a London office, the principal London office
of any affiliate of such Reference Bank) for immediately available funds in the
London interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.
"Eurodollar Revolving Credit Loan" shall mean any Revolving Credit Loan
which is a Eurodollar Loan.
"Eurodollar Tranche" shall mean the collective reference to Eurodollar
Revolving Credit Loans made by the Lenders, the then current Interest Periods
with respect to all of which begin on the same date and end on the same later
date (whether or not such Loans shall originally have been made on the same
day).
"Event of Default" shall have the meaning assigned to such term in
Article VI, provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Exchange Act Report" shall have the meaning assigned to such term in
Section 3.3.
"Excluded Indebtedness" shall mean (a) Indebtedness of any Person which
is acquired by Infinity or any of its Subsidiaries after the Original Closing
Date, which Indebtedness was outstanding prior to the date of acquisition of
such Person and was not created in anticipation thereof, (b) any Indebtedness
owing by Infinity or any of its Subsidiaries to Infinity or any of its
Subsidiaries (including any intercompany Indebtedness created by the declaration
of a note payable dividend by any Subsidiary to Infinity or any of its other
Subsidiaries) and (c) Specified Section 5.5(n) Indebtedness.
"Existing Credit Agreement" shall have the meaning assigned to such
term in the recitals to this Agreement.
"Facility Exposure" shall mean, with respect to any Lender, the sum of
(a) the Outstanding Revolving Extensions of Credit of such Lender, (b) the
aggregate outstanding principal
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amount of any Competitive Loans made by such Lender and (c) in the case of a
Swingline Lender, the aggregate outstanding principal amount of any Quoted
Swingline Loans made by such Swingline Lender.
"FCC" shall mean the Federal Communications Commission.
"FCC Licenses" shall mean, with respect to Infinity or any of its
Subsidiaries, any radio, television or other license, permit, certificate of
compliance or authorization issued by the FCC and required for the operation of
its respective radio and television broadcast stations.
"Federal Funds Effective Rate" shall have the meaning assigned to such
term in the definition of "Alternate Base Rate".
"Fees" shall mean the Commitment Fees, the Administrative Agent's Fees,
the Issuing Lender Fees and the LC Fees.
"Financial Covenants" shall have the meaning assigned to such term in
Section 1.2(b).
"Financial Letter of Credit" shall mean any Letter of Credit that, as
determined by the Administrative Agent, (a) supports a financial obligation and
(b) qualifies for the 100% credit conversion factor under the applicable Bank
for International Settlements guidelines.
"Financial Officer" of any corporation shall mean its chief financial
officer, its Vice President and Treasurer or its Vice President and Chief
Accounting Officer or, in each case, any comparable officer or any Person
designated by any such officer.
"Foreign Currency" shall mean any currency other than Dollars which is
readily convertible by the relevant Issuing Lender into Dollars.
"Foreign Exchange Rate" shall mean, with respect to any Foreign
Currency on a particular date, the rate at which such Foreign Currency may be
exchanged into Dollars, determined by reference to the selling rate in respect
of such Foreign Currency published in the "Wall Street Journal" on the relevant
date of determination. In the event that such rate is not, or ceases to be, so
published by the "Wall Street Journal", the "Foreign Exchange Rate" with respect
to such Foreign Currency shall be determined by reference to such other publicly
available source for determining exchange rates as may be agreed upon by the
Administrative Agent and Infinity or, in the absence of such agreement, such
"Foreign Exchange Rate" shall instead be the Administrative Agent's spot rate of
exchange in the interbank market where its foreign currency exchange operations
in respect of such Foreign Currency are then being conducted, at or about 12:00
noon, local time, at such date for the purchase of Dollars with such Foreign
Currency, for delivery two banking days later.
"GAAP" shall mean generally accepted accounting principles applied on a
consistent basis (but subject to changes approved by Infinity's independent
public accountants, or, with respect to determining the CBS Consolidated
Leverage Ratio, changes approved by CBS's independent public accountants).
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Granting Bank" shall have to meaning specified in Section 9.4(i).
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"Guarantee" of or by any Person shall mean any obligation, contingent
or otherwise, of such Person guaranteeing or entered into with the purpose of
guaranteeing any Indebtedness of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
Person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase Property, securities or services for the purpose
of assuring the owner of such Indebtedness of the payment of such Indebtedness
or (c) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided, however, that the term "Guarantee"
shall not include endorsements for collection or deposit, in either case in the
ordinary course of business.
"Indebtedness" of any Person shall mean, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d)
all obligations of such Person under conditional sale or other title retention
agreements relating to Property or assets purchased by such Person, (e) all
obligations of such Person issued or assumed as the deferred purchase price of
Property or services, (f) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on Property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations of such
Person and (i) all obligations of such Person as an account party in respect of
outstanding letters of credit (whether or not drawn) and bankers' acceptances;
provided, however, that Indebtedness shall not include (i) trade accounts
payable arising in the ordinary course of business, (ii) deferred compensation,
(iii) any Indebtedness of such Person to the extent (A) such Indebtedness does
not appear on the financial statements of such Person, (B) such Indebtedness is
recourse only to certain assets of such Person and (C) the assets to which such
Indebtedness is recourse only appear on the financial statements of such Person
net of such Indebtedness or (iv) obligations (not constituting obligations for
borrowed money) specifically with respect to the production, distribution and
acquisition of television and other programming rights or talent; and provided
further that the amount of any Indebtedness described in clause (f) above shall
be the lower of the amount of the obligation or the fair market value of the
collateral securing such obligation. The Indebtedness of any Person shall
include the Indebtedness of any partnership in which such Person is a general
partner, which Indebtedness is recourse to such general partner.
"Indebtedness for Borrowed Money" shall mean Indebtedness of the type
described in clause (a) or (b) of the definition of "Indebtedness" and any
Guarantee thereof.
"Infinity" shall have the meaning assigned to such term in the preamble
to this Agreement.
"Infinity Ratings" shall mean, at any time, the most recently announced
rating applicable to Infinity's commercial paper, as assigned by each Rating
Agency.
"Information" shall have the meaning assigned to such term in Section
3.13.
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"Intellectual Property" shall mean the collective reference to patents,
trademarks (registered or unregistered), trade names, service marks, assumed
names, copyrights, technology, know-how and processes.
"Interest Payment Date" shall mean (a) with respect to any Eurodollar
Loan or Absolute Rate Loan, the last day of the Interest Period applicable
thereto and, in the case of a Eurodollar Loan with an Interest Period of more
than three months' duration or an Absolute Rate Loan with an Interest Period of
more than 90 days' duration, each day that would have been an Interest Payment
Date for such Loan had successive Interest Periods of three months' duration or
90 days' duration, as the case may be, been applicable to such Loan and, in
addition, the date of any conversion of any Eurodollar Revolving Credit Loan to
an ABR Loan, the date of repayment or prepayment of any Eurodollar Loan and the
applicable Maturity Date; (b) with respect to any ABR Loan (other than an ABR
Swingline Loan which is not an Unrefunded Swingline Loan), the last day of each
March, June, September and December and the applicable Maturity Date; (c) with
respect to any ABR Swingline Loan (other than an Unrefunded Swingline Loan), the
earlier of (i) the day that is five Business Days after such Loan is made and
(ii) the Revolving Credit Maturity Date and (d) with respect to any Quoted
Swingline Loan, the date established as such by the relevant Swingline Borrower
and the relevant Swingline Lender prior to the making thereof (but in any event
no later than the Revolving Credit Maturity Date).
"Interest Period" shall mean (a) as to any Eurodollar Loan, the period
commencing on the borrowing date or conversion date of such Loan, or on the last
day of the immediately preceding Interest Period applicable to such Loan, as the
case may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months or (subject, in the case of Revolving Credit Loans, to the
prior consent of each Lender) 9 or 12 months thereafter, as the relevant
Borrower may elect, and (b) as to any Absolute Rate Loan, the period commencing
on the date of such Loan and ending on the date specified in the Competitive
Bids in which the offer to make such Absolute Rate Loan was extended, which
shall not be later than 180 days after the date of such Loan; provided, however,
that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless, in the case of Eurodollar Loans only, such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day and (ii) notwithstanding anything to the
contrary herein, no Borrower may select an Interest Period which would end after
the Maturity Date applicable to the relevant Loan. Interest shall accrue from
and including that first day of an Interest Period to but excluding the last day
of such Interest Period.
"Interim Certificate" shall have the meaning assigned to such term in
Annex I hereto.
"Issuing Lender" shall mean any Lender designated as an Issuing Lender
in an Issuing Lender Agreement executed by such Lender, Infinity and the
Administrative Agent.
"Issuing Lender Agreement" shall mean an agreement, substantially in
the form of Exhibit G, executed by a Lender, Infinity, and the Administrative
Agent pursuant to which such Lender agrees to become an Issuing Lender
hereunder, it being understood that any Issuing Lender Agreements under the
Existing Credit Agreement with respect to Letters of Credit issued on behalf of
Infinity or any Subsidiary Borrowers shall be deemed, on the Closing Date, to be
between the Lender party thereto, Infinity, and the Administrative Agent and
issued pursuant hereto.
"Issuing Lender Fees" shall mean, as to any Issuing Lender, the fees
set forth in the applicable Issuing Lender Agreement.
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"LC Disbursement" shall mean any payment or disbursement made by an
Issuing Lender under or pursuant to a Letter of Credit.
"LC Exposure" shall mean, as to each Lender, such Lender's Revolving
Credit Percentage of the Aggregate LC Exposure.
"LC Fee" shall have the meaning assigned such term in Section 2.9(b).
"Lenders" shall have the meaning assigned to such term in the preamble
to this Agreement.
"Letters of Credit" shall mean letters of credit or bank guarantees
issued by an Issuing Lender for the account of Infinity pursuant to Section 2.7
(including any Designated Letters of Credit).
"Lien" shall mean, with respect to any asset or Property, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset or Property and (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention agreement
relating to such asset or Property.
"Loan" shall mean any loan made by a Lender hereunder.
"Margin" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal rounded to no
more than four places) to be added to or subtracted from the Eurodollar Rate in
order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"Margin Stock" shall have the meaning assigned to such term under
Regulation U.
"Material Acquisition" shall mean any acquisition of Property or series
of related acquisitions of Property (including by way of merger) which (a)
constitutes assets comprising all or substantially all of an operating unit of a
business or constitutes all or substantially all of the common stock of a Person
and (b) involves the payment of consideration by Infinity and its Subsidiaries
(valued at the initial principal amount thereof in the case of non-cash
consideration consisting of notes or other debt securities and valued at fair
market value in the case of other non-cash consideration) in excess of
$50,000,000.
"Material Adverse Effect" shall mean (a) a material adverse effect on
the Property, business, results of operations or financial condition of Infinity
and its Subsidiaries taken as a whole or (b) material impairment of the ability
of Infinity to perform any of its obligations under this Agreement.
"Material Disposition" shall mean any Disposition of Property or series
of related Dispositions of Property which yields gross proceeds to Infinity or
any of its Subsidiaries (valued at the initial principal amount thereof in the
case of non-cash proceeds consisting of notes or other debt securities and
valued at fair market value in the case of other non-cash proceeds) in excess of
$50,000,000.
"Material Subsidiary" shall mean any Subsidiary of Infinity except for
Subsidiaries which in the aggregate would not constitute a significant
subsidiary under Regulation S-X of the SEC, provided, that each Subsidiary
Borrower shall in any event constitute a Material Subsidiary.
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"Maturity Date" shall mean (a) in the case of the Revolving Credit
Loans and the ABR Swingline Loans, the Revolving Credit Maturity Date, (b) in
the case of the Quoted Swingline Loans, the date established as such by the
relevant Swingline Borrower and the relevant Swingline Lender prior to the
making thereof (but in any event no later than the Revolving Credit Maturity
Date) and (c) in the case of Competitive Loans, the last day of the Interest
Period applicable thereto, as specified in the related Competitive Bid Request.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Xxxxxx" shall have the meaning assigned to such term in the preamble
to this Agreement.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 3(37) of ERISA to which contributions have been made by Infinity or any
ERISA Affiliate of CBS and which is covered by Title IV of ERISA.
"Net Cash Proceeds" shall mean, in connection with any Disposition of
all or any material part of any Allocated Unit, the proceeds thereof in the form
of cash and cash equivalents (including any such proceeds received by way of
deferred payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Disposition, net of (i) attorneys' fees, accountants' fees,
investment banking fees and other customary fees and expenses actually incurred
in connection therewith, (ii) taxes paid or reasonably estimated to be payable
on a current basis as a result thereof (after taking into account any available
tax credits or deductions) and (iii) any cash purchase price adjustments paid in
connection therewith (but only as and when paid).
"1996 First Quarter Financial Statements" shall mean the unaudited
consolidated financial statements of CBS and its subsidiaries as of and for the
fiscal quarter ended March 31, 1996 as set forth in the Quarterly Report on Form
10-Q of CBS.
"Non-Financial Letter of Credit" shall mean any Letter of Credit that
is not a Financial Letter of Credit.
"Non-U.S. Person" shall have the meaning assigned to such term in
Section 2.20(f).
"Original Closing Date" shall mean August 29, 1996.
"Outdoor Systems" shall mean Outdoor Systems, Inc.
"Outdoor Systems Merger" shall mean the merger of Outdoor Systems with
and into a Subsidiary of Infinity.
"Outdoor Systems Merger Date" shall mean the date of the consummation
of the Outdoor Systems Merger.
"Outstanding Revolving Extensions of Credit" shall mean, as to any
Lender at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans made by
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such Lender then outstanding, (b) such Lender's LC Exposure at such time and (c)
such Lender's ABR Swingline Exposure at such time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, or any successor thereto.
"Person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership, limited liability company or
other entity, or any government or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan as defined in
Section 3(2) of ERISA (other than a Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section 412 of the Code and which is
maintained for employees of CBS or any ERISA Affiliate.
"Prime Rate" shall have the meaning assigned to such term in the
definition of "Alternate Base Rate".
"Pro Forma Period" shall have the meaning assigned to such term in
Section 1.2(c).
"Projections" shall have the meaning assigned to such term in Section
3.12.
"Property" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.
"Quoted Swingline Loans" shall have the meaning assigned to such term
in Section 2.6(a).
"Quoted Swingline Rate" shall have the meaning assigned to such term in
Section 2.6(a).
"Rating Agencies" shall mean S&P and Moody's.
"Reference Banks" shall mean Chase, Morgan, Bank of America and Toronto
Dominion.
"Register" shall have the meaning assigned to such term in Section
9.4(d).
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Required Lenders" shall mean, at any time, Lenders whose respective
Total Facility Percentages aggregate not less than 51%.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement (or, in the case of
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matters relating to ERISA, any officer responsible for the administration of the
pension funds of such corporation).
"Revolving Credit Borrowing Request" shall mean a request made pursuant
to Section 2.4 in the form of Exhibit B-4.
"Revolving Credit Loans" shall mean the revolving loans made by the
Lenders to any Borrower pursuant to Section 2.4. Each Revolving Credit Loan
shall be a Eurodollar Loan or an ABR Loan.
"Revolving Credit Maturity Date" shall mean August 29, 2001.
"Revolving Credit Percentage" of any Lender at any time shall mean the
percentage of the aggregate Commitments (or, following any termination of all
the Commitments, the Commitments most recently in effect) represented by such
Lender's Commitment (or, following any such termination, the Commitment of such
Lender most recently in effect).
"Sale/Leaseback" shall mean any lease, whether an operating lease or a
capital lease, whereby Infinity or any of its Subsidiaries, directly or
indirectly, becomes or remains liable as lessee or as guarantor or other surety,
of any Property whether now owned or hereafter acquired, (a) that Infinity or
any of its Subsidiaries, as the case may be, has sold or transferred or is to
sell or transfer to any other Person (other than Infinity or any of its
Subsidiaries), or (b) that is acquired by any other Person, as part of a
financing transaction to which Infinity or any of its Subsidiaries is a party,
in contemplation of leasing such Property to Infinity or any of its
Subsidiaries, as the case may be.
"Sale/Leaseback Attributable Debt" shall mean, for any Sale/Leaseback,
the present value (discounted at the rate of interest implicit in such
Sale/Leaseback, determined in accordance with GAAP or, in the event that such
rate of interest is not reasonably determinable, discounted at the interest rate
applicable to an ABR Revolving Credit Loan on the date of the commencement of
such transaction), as of the date on which the amount thereof is to be
determined, of the obligation of the lessee for net rental payments during the
remaining term of such Sale/Leaseback (including any period for which such
Sale/Leaseback may, at the option of the lessor, be extended). In the case of
any master lease agreement, each fixed or capital asset subject thereto (or any
related group of such assets for which the lease terms commence at the same
time) shall be deemed to be the subject of a separate Sale/Leaseback, and, to
the extent that any fixed or capital asset is the subject of a Sale/Leaseback
and then of another, the Sale/Leaseback Attributable Debt will be deemed to be
incurred only under the first such Sale/Leaseback. For the purposes of Section
5.5(m), the Sale/Leaseback Attributable Debt of any Subsidiary of CBS which is
not a Wholly Owned Subsidiary shall be deemed to be the amount determined in
accordance with the foregoing provisions of this definition multiplied by CBS's
direct or indirect percentage common equity interest in such Subsidiary at the
date of determination.
"S&P" shall mean Standard & Poor's Ratings Services.
"SEC" shall mean the Securities and Exchange Commission.
"Specified Section 5.5(n) Indebtedness" shall have the meaning assigned
to such term in Section 5.5(n).
"SPC" shall have the meaning specified in Section 9.4(i).
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"Subsidiary" shall mean, for any Person (the "Parent"), any
corporation, partnership or other entity of which shares of Voting Capital Stock
sufficient to elect a majority of the board of directors or other Persons
performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the happening of
any contingency) are at the time directly or indirectly owned or controlled by
the Parent or one or more of its Subsidiaries or by the Parent and one or more
of its Subsidiaries. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary
or Subsidiaries of Infinity.
"Subsidiary Borrower" shall mean any Subsidiary (a) which is organized
under the laws of the United States of America, any state, territory or
possession thereof or the District of Columbia, (b) which is designated as a
Subsidiary Borrower by Infinity pursuant to a Subsidiary Borrower Designation,
(c) which has delivered to the Administrative Agent a Subsidiary Borrower
Request and (d) whose designation as a Subsidiary Borrower has not been
terminated pursuant to Section 4.2. Notwithstanding anything to the contrary
herein, on the Closing Date, any Subsidiary of Infinity which is a Subsidiary
Borrower under the Existing Credit Agreement shall be deemed to be a Subsidiary
Borrower under this Agreement and not under the Existing Credit Agreement.
"Subsidiary Borrower Designation" shall mean a designation,
substantially in the form of Exhibit B-7, which may be delivered by Infinity and
approved by CBS and shall be accompanied by a Subsidiary Borrower Request.
"Subsidiary Borrower Obligations" shall mean, with respect to each
Subsidiary Borrower, the unpaid principal of and interest on the Loans made to
such Borrower (including, without limitation, interest accruing after the
maturity of the Loans made to such Borrower and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to such Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
and all other obligations and liabilities of such Borrower to the Administrative
Agent or to any Lender, whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, this Agreement.
"Subsidiary Borrower Request" shall mean a request, substantially in
the form of Exhibit B-8, which is received by the Administrative Agent in
connection with a Subsidiary Borrower Designation.
"Swingline Borrower" shall mean Infinity and any Subsidiary Borrower
designated as a "Swingline Borrower" by Infinity in a written notice to the
Administrative Agent, provided, that, unless otherwise agreed by the
Administrative Agent, no more than one Subsidiary Borrower may be a Swingline
Borrower at any one time.
"Swingline Commitment" shall mean, with respect to any Swingline
Lender, the commitment of such Lender to make ABR Swingline Loans pursuant to
Section 2.6, as designated in accordance with Section 2.6(g).
"Swingline Lender" shall mean any Lender designated by Infinity as a
"Swingline Lender" pursuant to Section 2.6(g).
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"Swingline Loans" shall mean the collective reference to the ABR
Swingline Loans and the Quoted Swingline Loans.
"Swingline Percentage" of any Swingline Lender at any time shall mean
the percentage of the aggregate Swingline Commitments represented by such
Swingline Lender's Swingline Commitment.
"Syndication Agents" shall have the meaning assigned to such term in
the preamble to this Agreement.
"Test Period" shall have the meaning assigned to such term in Section
1.2(c).
"Toronto Dominion" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Total Commitment" shall mean at any time the aggregate amount of the
Commitments in effect at such time.
"Total Facility Exposure" shall mean at any time the aggregate amount
of the Facility Exposures at such time.
"Total Facility Percentage" shall mean, as to any Lender at any time,
the quotient (expressed as a percentage) of (a) such Lender's Commitment (or (x)
for the purposes of acceleration of the Loans pursuant to clause (II) of Article
VI or (y) if the Commitments have terminated, such Lender's Facility Exposure)
and (b) the aggregate of all Lenders' Commitments (or (x) for the purposes of
acceleration of the Loans pursuant to clause (II) of Article VI or (y) if the
Commitments have terminated, the Total Facility Exposure).
"Transferee" shall mean any assignee or participant described in
Section 9.4(b) or (f).
"Type" when used in respect of any Loan, shall refer to the Rate by
reference to which interest on such Loan is determined. For purposes hereof,
"Rate" shall mean the Eurodollar Rate, the Alternate Base Rate, the Quoted
Swingline Rate and the rate paid on Absolute Rate Loans.
"Unrefunded Swingline Loans" shall have the meaning assigned to such
term in Section 2.6(d).
"U.S. Person" shall mean a citizen, national or resident of the United
States of America, or an entity organized in or under the laws of the United
States of America.
"Viacom" shall mean Viacom, Inc., a Delaware corporation.
"Viacom Merger" shall mean the merger between CBS and Viacom.
"Voting Capital Stock" shall mean securities or other ownership
interests of a corporation, partnership or other entity having by the terms
thereof ordinary voting power to vote in the election of the board of directors
or other Persons performing similar functions of such corporation, partnership
or other entity (without regard to the occurrence of any contingency).
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"Wholly Owned Subsidiary" shall mean any Subsidiary of which all shares
of Voting Capital Stock (other than, in the case of a corporation, directors'
qualifying shares) are owned directly or indirectly by the Parent (as defined in
the definition of "Subsidiary").
SECTION 1.2. Terms Generally. (a) The definitions in Section 1.1 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall, except where the context otherwise requires, be deemed to be
followed by the phrase "without limitation". All references herein to Articles,
Sections, Exhibits and Schedules shall be deemed references to Articles and
Sections of, and Exhibits and Schedules to, this Agreement unless the context
shall otherwise require.
(b) Except as otherwise expressly provided herein, all terms of an
accounting nature shall be construed in accordance with GAAP as in effect from
time to time; provided, however, that, for purposes of determining compliance
with the covenants set forth in Sections 5.7 and 5.8 (such Sections being
referred to as the "Financial Covenants"), except as otherwise set forth in the
Financial Covenants and the definitions related thereto, such terms shall be
construed in accordance with GAAP as in effect on June 30, 1999. Any
determination of the CBS Consolidated Leverage Ratio shall be made in a
comparable manner by reference to the 1996 First Quarter Financial Statements.
(c) For the purposes of calculating Consolidated EBITDA and
Consolidated Interest Expense for any period (a "Test Period"), (i) if at any
time from the period (a "Pro Forma Period") commencing on the second day of such
Test Period and ending on the date which is ten days prior to the date of
delivery of the Compliance Certificate or Interim Certificate, as the case may
be, in respect of such Test Period (or, in the case of any pro forma calculation
made pursuant hereto in respect of a particular transaction, ending on the date
such transaction is consummated after giving effect thereto), Infinity or any
Subsidiary shall have made any Material Disposition, the Consolidated EBITDA for
such Test Period shall be reduced by an amount equal to the Consolidated EBITDA
(if positive) attributable to the Property which is the subject of such Material
Disposition for such Test Period or increased by an amount equal to the
Consolidated EBITDA (if negative) attributable thereto for such Test Period, and
Consolidated Interest Expense for such Test Period shall be reduced by an amount
equal to the Consolidated Interest Expense for such Test Period attributable to
any Indebtedness of Infinity or any Subsidiary repaid, repurchased, defeased or
otherwise discharged with respect to Infinity and its Subsidiaries in connection
with such Material Disposition (or, if the Capital Stock of any Subsidiary is
sold, the Consolidated Interest Expense for such Test Period directly
attributable to the Indebtedness of such Subsidiary to the extent Infinity and
its continuing Subsidiaries are no longer liable for such Indebtedness after
such Disposition); (ii) if during such Pro Forma Period Infinity or any
Subsidiary shall have made a Material Acquisition, Consolidated EBITDA and
Consolidated Interest Expense for such Test Period shall be calculated after
giving pro forma effect thereto (including the incurrence or assumption of any
Indebtedness in connection therewith) as if such Material Acquisition (and the
incurrence or assumption of any such Indebtedness) occurred on the first day of
such Test Period; (iii) if during such Pro Forma Period any Person that
subsequently became a Subsidiary or was merged with or into Infinity or any
Subsidiary since the beginning of such Pro Forma Period shall have entered into
any disposition or acquisition transaction that would have required an
adjustment pursuant to clause (i) or (ii) above if made by Infinity or a
Subsidiary during such Pro Forma Period, Consolidated EBITDA and Consolidated
Interest Expense for such Test Period shall be calculated after giving pro forma
effect thereto as if such transaction occurred on the first day of such Test
Period; and (iv) with respect to CBS, the financial results and effects of the
operations of the Eye on People and TeleNoticias businesses shall be entirely
excluded from CBS Consolidated EBITDA. For the purposes of this paragraph,
whenever pro forma effect is to be given to a Material Disposition or Material
Acquisition, the amount of income
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or earnings relating thereto and the amount of Consolidated Interest Expense
associated with any Indebtedness discharged or incurred in connection therewith,
the pro forma calculations shall be determined in good faith by a Financial
Officer of Infinity. If any Indebtedness bears a floating rate of interest and
the incurrence or assumption thereof is being given pro forma effect, the
interest expense on such Indebtedness shall be calculated as if the rate in
effect on the last day of the relevant Pro Forma Period had been the applicable
rate for the entire relevant Test Period (taking into account any interest rate
protection agreement applicable to such Indebtedness if such interest rate
protection agreement has a remaining term in excess of 12 months). Comparable
adjustments shall be made in connection with any determination of CBS
Consolidated EBITDA.
(d) For the purposes of the CBS Consolidated Leverage Ratio, (i) the
Discontinued Operations shall be disregarded and (ii) the businesses classified
as Discontinued Operations shall be limited to those businesses treated as such
in the financial statements of CBS referred to in the definition of
"Discontinued Operations" and the accounting treatment of Discontinued
Operations shall be consistent with the accounting treatment thereof in such
financial statements.
ARTICLE II.
THE CREDITS
SECTION 2.1. Commitments. Subject to the terms and conditions hereof
and relying upon the representations and warranties herein set forth, each
Lender agrees, severally and not jointly, to make Revolving Credit Loans to
Infinity or any Subsidiary Borrower, at any time and from time to time on and
after the Closing Date and until the earlier of (a) the Business Day immediately
preceding the Revolving Credit Maturity Date and (b) the termination of the
Commitment of such Lender, in an aggregate principal amount at any time
outstanding not to exceed such Lender's Commitment. Each Borrower may borrow,
prepay and reborrow Revolving Credit Loans on and after the Closing Date and
prior to the Revolving Credit Maturity Date, subject to the terms, conditions
and limitations set forth herein. On the Closing Date, all loans and obligations
of, and any Letters of Credit issued on behalf of, Infinity and any Subsidiary
Borrowers under or in connection with the Existing Credit Agreement shall be
deemed to be outstanding hereunder and not under the Existing Credit Agreement.
SECTION 2.2. Revolving Credit Loans; Competitive Loans. (a) Each
Revolving Credit Loan shall be made to the relevant Borrower by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made to the relevant Borrower by the Lender whose Competitive Bid
therefor is accepted, and in the amount so accepted, in accordance with the
procedures set forth in Section 2.3. The Revolving Credit Loans or Competitive
Loans shall be made in minimum amounts equal to (i) in the case of Competitive
Loans, $5,000,000 or an integral multiple of $1,000,000 in excess thereof, (ii)
in the case of Eurodollar Revolving Credit Loans, $50,000,000 or an integral
multiple of $5,000,000 in excess thereof, and (iii) in the case of ABR Revolving
Credit Loans, $25,000,000 or an integral multiple of $5,000,000 in excess
thereof (or an aggregate principal amount equal to the remaining balance of the
available Total Commitment).
(b) Each Lender shall make each Loan (other than a Swingline Loan, as
to which this Section 2.2 shall not apply) to be made by it on the proposed date
thereof by wire transfer of immediately available funds to the Administrative
Agent in New York, New York, not later than 12:00 noon, New York City time (or,
in connection with an ABR Loan to be made on the same day on which a notice is
submitted, 12:30 p.m., New York City time) and the Administrative Agent shall by
3:00 p.m., New York City time, credit the amounts so received to the general
deposit account of the relevant Borrower with the Administrative Agent.
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SECTION 2.3. Competitive Bid Procedure. (a) In order to request
Competitive Bids, the relevant Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Competitive Bid Request in the form of
Exhibit B-1, to be received by the Administrative Agent (i) in the case of a
Eurodollar Competitive Loan, not later than 10:00 a.m., New York City time, four
Business Days before a proposed Competitive Loan and (ii) in the case of an
Absolute Rate Loan, not later than 10:00 a.m., New York City time, one Business
Day before a proposed Competitive Loan. A Competitive Bid Request that does not
conform substantially to the format of Exhibit B-1 may be rejected in the
Administrative Agent's discretion (exercised in good faith), and the
Administrative Agent shall promptly notify the relevant Borrower of such
rejection by telephone, confirmed by telecopier. Such request shall in each case
refer to this Agreement and specify (x) whether the Competitive Loan then being
requested is to be a Eurodollar Competitive Loan or an Absolute Rate Loan, (y)
the date of such Loan (which shall be a Business Day) and the aggregate
principal amount thereof which shall be in a minimum principal amount of
$5,000,000 and in an integral multiple of $1,000,000, and (z) the Interest
Period with respect thereto (which may not end after the Revolving Credit
Maturity Date). Promptly after its receipt of a Competitive Bid Request that is
not rejected as aforesaid (and in any event by 5:00 p.m., New York City time, on
the date of such receipt if such receipt occurs by the time specified in the
first sentence of this paragraph), the Administrative Agent shall invite by
telecopier (in the form set forth in Exhibit B-2) the Lenders to bid, on the
terms and conditions of this Agreement, to make Competitive Loans pursuant to
such Competitive Bid Request.
(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the relevant Borrower responsive to a Competitive Bid
Request. Each Competitive Bid must be received by the Administrative Agent by
telecopier, in the form of Exhibit B-3, (i) in the case of a Eurodollar
Competitive Loan, not later than 9:30 a.m., New York City time, three Business
Days before a proposed Competitive Loan and (ii) in the case of an Absolute Rate
Loan, not later than 9:30 a.m., New York City time, on the day of a proposed
Competitive Loan. Multiple Competitive Bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform substantially to the
format of Exhibit B-3 may be rejected by the Administrative Agent after
conferring with, and upon the instruction of, the relevant Borrower, and the
Administrative Agent shall notify the Lender making such nonconforming
Competitive Bid of such rejection as soon as practicable. Each Competitive Bid
shall refer to this Agreement and specify (x) the principal amount (which shall
be in a minimum principal amount of $5,000,000 and in an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Loan requested by the relevant Borrower) of the Competitive Loan or Loans that
the applicable Lender is willing to make to the relevant Borrower, (y) the
Competitive Bid Rate or Rates at which such Lender is prepared to make the
Competitive Loan or Loans and (z) the Interest Period and the last day thereof.
A Competitive Bid submitted pursuant to this paragraph (b) shall be irrevocable
(subject to the satisfaction of the conditions to borrowing set forth in Article
IV).
(c) The Administrative Agent shall promptly (and in any event by 10:15
a.m., New York City time, on the date on which such Competitive Bids shall have
been made) notify the relevant Borrower by telecopier of all the Competitive
Bids made, the Competitive Bid Rate and the principal amount of each Competitive
Loan in respect of which a Competitive Bid was made and the identity of the
Lender that made each Competitive Bid. The Administrative Agent shall send a
copy of all Competitive Bids to the relevant Borrower for its records as soon as
practicable after completion of the bidding process set forth in this Section
2.3.
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(d) The relevant Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. The relevant Borrower shall
notify the Administrative Agent by telephone, confirmed by telecopier in such
form as may be agreed upon by such Borrower and the Administrative Agent,
whether and to what extent it has decided to accept or reject any of or all the
Competitive Bids referred to in paragraph (c) above, (x) in the case of a
Eurodollar Competitive Loan, not later than 11:00 a.m., New York City time,
three Business Days before a proposed Competitive Loan, and (y) in the case of
an Absolute Rate Loan, not later than 11:00 a.m., New York City time, on the day
of a proposed Competitive Loan; provided, however, that (i) the failure by such
Borrower to give such notice shall be deemed to be a rejection of all the
Competitive Bids referred to in paragraph (c) above, (ii) such Borrower shall
not accept a Competitive Bid made at a particular Competitive Bid Rate if it has
decided to reject a Competitive Bid made at a lower Competitive Bid Rate, (iii)
the aggregate amount of the Competitive Bids accepted by such Borrower shall not
exceed the principal amount specified in the Competitive Bid Request (but may be
less than that requested), (iv) if such Borrower shall accept a Competitive Bid
or Competitive Bids made at a particular Competitive Bid Rate but the amount of
such Competitive Bid or Competitive Bids shall cause the total amount of
Competitive Bids to be accepted by it to exceed the amount specified in the
Competitive Bid Request, then such Borrower shall accept a portion of such
Competitive Bid or Competitive Bids in an amount equal to the amount specified
in the Competitive Bid Request less the amount of all other Competitive Bids
accepted with respect to such Competitive Bid Request, which acceptance, in the
case of multiple Competitive Bids at such Competitive Bid Rate, shall be made
pro rata in accordance with the amount of each such Competitive Bid at such
Competitive Bid Rate, and (v) except pursuant to clause (iv) above no
Competitive Bid shall be accepted for a Competitive Loan unless such Competitive
Loan is in a minimum principal amount of $5,000,000 and an integral amount
multiple of $1,000,000; provided, further, however, that if a Competitive Loan
must be in an amount less than $5,000,000 because of the provisions of clause
(iv) above, such Competitive Loan may be for a minimum of $1,000,000 or any
integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple Competitive Bids at a particular Competitive
Bid Rate pursuant to clause (iv) the amounts shall be rounded to integral
multiples of $1,000,000 in a manner which shall be in the discretion of such
Borrower. A notice given by any Borrower pursuant to this paragraph (d) shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
whether or not its Competitive Bid has been accepted (and if so, in what amount
and at what Competitive Bid Rate) by telecopy sent by the Administrative Agent,
and each successful bidder will thereupon become bound, subject to the other
applicable conditions hereof, to make the Competitive Loan in respect of which
its Competitive Bid has been accepted.
(f) A Competitive Bid Request shall not be made within five Business
Days after the date of any previous Competitive Bid Request, unless the
Administrative Agent shall agree otherwise.
(g) If the Lender which is the Administrative Agent shall elect to
submit a Competitive Bid in its capacity as a Lender, it shall submit such
Competitive Bid directly to the relevant Borrower one quarter of an hour earlier
than the latest time at which the other Lenders are required to submit their
Competitive Bids to the Administrative Agent pursuant to paragraph (b) above.
(h) All notices required by this Section 2.3 shall be given in
accordance with Section 9.1.
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(i) No Borrower shall have the right to prepay any Competitive Loan
without the consent of the affected Lender or Lenders.
SECTION 2.4. Revolving Credit Borrowing Procedure. In order to request
a Revolving Credit Loan, the relevant Borrower shall hand deliver or telecopy to
the Administrative Agent a Revolving Credit Borrowing Request in the form of
Exhibit B-4 (a) in the case of a Eurodollar Revolving Credit Loan, not later
than 11:00 a.m., New York City time, three Business Days before a proposed
borrowing and (b) in the case of an ABR Revolving Credit Loan, not later than
11:00 a.m., New York City time, on the day of a proposed borrowing. Such notice
shall be irrevocable and shall in each case specify (i) whether the Revolving
Credit Loan then being requested is to be a Eurodollar Revolving Credit Loan or
an ABR Revolving Credit Loan, (ii) the date of such Revolving Credit Loan (which
shall be a Business Day) and the amount thereof; and (iii) in the case of a
Eurodollar Revolving Credit Loan, the Interest Period with respect thereto. The
Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.4 and of each Lender's portion of the requested Loan.
SECTION 2.5. Repayment of Loans. Each Borrower shall repay all
outstanding Revolving Credit Loans and ABR Swingline Loans made to it, in each
case on the Revolving Credit Maturity Date (or such earlier date on which the
Commitments shall terminate in accordance herewith). Each Borrower shall repay
Quoted Swingline Loans and Competitive Loans made to it, in each case on the
Maturity Date applicable thereto. Each Loan shall bear interest from and
including the date thereof on the outstanding principal balance thereof as set
forth in Section 2.10.
SECTION 2.6. Swingline Loans. (a) Subject to the terms and conditions
hereof and relying upon the representations and warranties herein set forth,
each Swingline Lender agrees, severally and not jointly, at any time and from
time to time on and after the Closing Date and until the earlier of the Business
Day immediately preceding the Revolving Credit Maturity Date and the termination
of the Swingline Commitment of such Swingline Lender, (i) to make available to
any Swingline Borrower Swingline Loans ("Quoted Swingline Loans") on the basis
of quoted interest rates (each, a "Quoted Swingline Rate") furnished by such
Swingline Lender from time to time in its discretion to such Swingline Borrower
(through the Administrative Agent) and accepted by such Swingline Borrower in
its discretion and (ii) to make Swingline Loans ("ABR Swingline Loans") to any
Swingline Borrower bearing interest at a rate equal to the Alternate Base Rate
in an aggregate principal amount (in the case of this clause (ii)) not to exceed
such Swingline Lender's Swingline Commitment. The aggregate outstanding
principal amount of the Quoted Swingline Loans of any Swingline Lender, when
added to the aggregate outstanding principal amount of the ABR Swingline Loans
of such Swingline Lender, may exceed such Swingline Lender's Swingline
Commitment, provided, that in no event shall the aggregate outstanding principal
amount of the Swingline Loans exceed the aggregate Swingline Commitments then in
effect. Each Quoted Swingline Loan shall be made only by the Swingline Lender
furnishing the relevant Quoted Swingline Rate. Each ABR Swingline Loan shall be
made by the Swingline Lenders ratably in accordance with their respective
Swingline Percentages. The Swingline Loans shall be made in a minimum aggregate
principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof (or an aggregate principal amount equal to the remaining balance of the
available Swingline Commitments). Each Swingline Lender shall make the portion
of each Swingline Loan to be made by it available to any Swingline Borrower by
means of a credit to the general deposit account of such Swingline Borrower with
the Administrative Agent or a wire transfer, at the expense of such Swingline
Borrower, to an account designated in writing by such Swingline Borrower, in
each case by 3:30 p.m., New York City time, on the date such Swingline Loan is
requested to be made pursuant to paragraph (b) below, in immediately available
funds. Each Swingline Borrower may borrow, prepay and reborrow Swingline Loans
on or after the Closing Date and prior to the Revolving Credit Maturity Date (or
such
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earlier date on which the Commitments shall terminate in accordance herewith) on
the terms and subject to the conditions and limitations set forth herein.
(b) The relevant Swingline Borrower shall give the Administrative Agent
telephonic, written or telecopy notice substantially in the form of Exhibit B-5
(in the case of telephonic notice, such notice shall be promptly confirmed by
telecopy) no later than 2:30 p.m., New York City time (or, in the case of a
proposed Quoted Swingline Loan, 12:00 noon, New York City time), on the day of a
proposed Swingline Loan. Such notice shall be delivered on a Business Day, shall
be irrevocable (subject, in the case of Quoted Swingline Loans, to receipt by
the relevant Swingline Borrower of Quoted Swingline Rates acceptable to it) and
shall refer to this Agreement and shall specify the requested date (which shall
be a Business Day) and amount of such Swingline Loan. The Administrative Agent
shall promptly advise the Swingline Lenders of any notice received from any
Swingline Borrower pursuant to this paragraph (b). In the event that a Swingline
Borrower accepts a Quoted Swingline Rate in respect of a proposed Quoted
Swingline Loan, it shall notify the Administrative Agent (which shall in turn
notify the relevant Swingline Lender) of such acceptance no later than 2:30
p.m., New York City time, on the relevant borrowing date.
(c) In the event that any ABR Swingline Loan shall be outstanding for
more than five Business Days, the Administrative Agent shall, on behalf of the
relevant Swingline Borrower (which hereby irrevocably directs and authorizes the
Administrative Agent to act on its behalf), request each Lender, including the
Swingline Lenders, to make an ABR Revolving Credit Loan in an amount equal to
such Lender's Revolving Credit Percentage of the principal amount of such ABR
Swingline Loan. Each Lender will make the proceeds of its Revolving Credit Loan
available to the Administrative Agent for the account of the Swingline Lenders
at the office of the Administrative Agent prior to 12:00 Noon, New York City
time, in funds immediately available on the Business Day next succeeding the
date such notice is given. The proceeds of such Revolving Credit Loans shall be
immediately applied to repay the ABR Swingline Loans.
(d) If, for any reason, Revolving Credit Loans may not be (as
determined by the Administrative Agent in its sole discretion), or are not, made
pursuant to Section 2.6(c) to repay ABR Swingline Loans as required by said
Section, then, effective on the date such Revolving Credit Loans would otherwise
have been made, each Lender severally, unconditionally and irrevocably agrees
that it shall purchase an undivided participating interest in such ABR Swingline
Loans ("Unrefunded Swingline Loans") in an amount equal to the amount of the
Revolving Credit Loan which otherwise would have been made by such Lender
pursuant to Section 2.6(c), which purchase shall be funded by the time such
Revolving Credit Loan would have been required to be made pursuant to Section
2.6(c). In the event that the Lenders purchase undivided participating interests
pursuant to the first sentence of this paragraph (d), each Lender shall
immediately transfer to the Administrative Agent, for the account of the
Swingline Lenders, in immediately available funds, the amount of its
participation. Any Lender holding a participation in an Unrefunded Swingline
Loan may exercise any and all rights of banker's lien, setoff or counterclaim
with respect to any and all moneys owing by the relevant Swingline Borrower to
such Lender by reason thereof as fully as if such Lender had made a Loan
directly to such Swingline Borrower in the amount of such participation.
(e) Whenever, at any time after any Swingline Lender has received from
any Lender such Lender's participating interest in an ABR Swingline Loan, such
Swingline Lender receives any payment on account thereof, such Swingline Lender
will promptly distribute to such Lender its participating interest in such
amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participating interest was outstanding
and funded);
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provided, however, that in the event that such payment received by such
Swingline Lender is required to be returned, such Lender will return to such
Swingline Lender any portion thereof previously distributed by such Swingline
Lender to it.
(f) Notwithstanding anything to the contrary in this Agreement, each
Lender's obligation to make the Revolving Credit Loans referred to in Section
2.6(c) and to purchase and fund participating interests pursuant to Section
2.6(d) shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender or any Swingline Borrower
may have against any Swingline Lender, any Swingline Borrower or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of a
Default or an Event of Default or the failure to satisfy any of the conditions
specified in Article IV; (iii) any adverse change in the condition (financial or
otherwise) of Infinity or any of its Subsidiaries; (iv) any breach of this
Agreement by any Borrower or any Lender; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
(g) Upon written or telecopy notice to the Swingline Lenders and to the
Administrative Agent, Infinity may at any time terminate, from time to time in
part reduce, or from time to time (with the approval of the relevant Swingline
Lender) increase, the Swingline Commitment of any Swingline Lender. At any time
when there shall be fewer than ten Swingline Lenders, Infinity may appoint from
among the Lenders a new Swingline Lender, subject to the prior consent of such
new Swingline Lender and prior notice to the Administrative Agent, so long as at
no time shall there be more than ten Swingline Lenders. Notwithstanding anything
to the contrary in this Agreement, (i) if any ABR Swingline Loans shall be
outstanding at the time of any termination, reduction, increase or appointment
pursuant to the preceding two sentences, the Swingline Borrowers shall on the
date thereof prepay or borrow ABR Swingline Loans to the extent necessary to
ensure that at all times the outstanding ABR Swingline Loans held by the
Swingline Lenders shall be pro rata according to the respective Swingline
Commitments of the Swingline Lenders and (ii) in no event may the aggregate
Swingline Commitments exceed $300,000,000. On the date of any termination or
reduction of the Swingline Commitments pursuant to this paragraph (g), the
Swingline Borrowers shall pay or prepay so much of the Swingline Loans as shall
be necessary in order that, after giving effect to such termination or
reduction, (i) the aggregate outstanding principal amount of the ABR Swingline
Loans of any Swingline Lender will not exceed the Swingline Commitment of such
Swingline Lender and (ii) the aggregate outstanding principal amount of all
Swingline Loans will not exceed the aggregate Swingline Commitments.
(h) Each Swingline Borrower may prepay any Swingline Loan in whole or
in part at any time without premium or penalty; provided that such Swingline
Borrower shall have given the Administrative Agent written or telecopy notice
(or telephone notice promptly confirmed in writing or by telecopy) of such
prepayment not later than 10:30 a.m., New York City time, on the Business Day
designated by such Swingline Borrower for such prepayment; and provided further
that each partial payment shall be in an amount that is an integral multiple of
$1,000,000. Each notice of prepayment under this paragraph (h) shall specify the
prepayment date and the principal amount of each Swingline Loan (or portion
thereof) to be prepaid, shall be irrevocable and shall commit such Swingline
Borrower to prepay such Swingline Loan (or portion thereof) by the amount stated
therein on the date stated therein. All prepayments under this paragraph (h)
shall be accompanied by accrued interest on the principal amount being prepaid
to the date of payment. Each payment of principal of or interest on ABR
Swingline Loans shall be allocated, as between the Swingline Lenders, pro rata
in accordance with their respective Swingline Percentages.
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SECTION 2.7. Letters of Credit. (a) Subject to the terms and conditions
hereof and relying upon the representations and warranties herein set forth,
each Issuing Lender agrees, at any time and from time to time on or after the
Closing Date until the earlier of (i) the tenth Business Day preceding the
Revolving Credit Maturity Date and (ii) the termination of the Commitments in
accordance with the terms hereof, to issue and deliver or to extend the expiry
of Letters of Credit for the account of Infinity in an aggregate outstanding
undrawn amount which does not exceed the maximum amount specified in the
applicable Issuing Lender Agreement; provided that in no event shall the
Aggregate LC Exposure exceed $750,000,000 at any time. Each Letter of Credit (i)
shall be in a form approved in writing by Infinity and the applicable Issuing
Lender and (ii) shall permit drawings upon the presentation of such documents as
shall be specified by Infinity in the applicable notice delivered pursuant to
paragraph (c) below. The Lenders agree that, subject to compliance with the
conditions precedent set forth in Section 4.3, any Designated Letter of Credit
may be designated as a Letter of Credit hereunder from time to time on or after
the Closing Date pursuant to the procedures specified in the definition of
"Designated Letters of Credit".
(b) Each Letter of Credit shall by its terms expire not later than the
fifth Business Day preceding the Revolving Credit Maturity Date. Any Letter of
Credit may provide for the renewal thereof for additional periods (which shall
in no event extend beyond the date referred to in the preceding sentence). Each
Letter of Credit shall by its terms provide for payment of drawings in Dollars
or in a Foreign Currency, provided that a Letter of Credit denominated in a
Foreign Currency may not be issued if, after giving effect thereto, the Dollar
equivalent of the aggregate face amount of all Letters of Credit denominated in
Foreign Currencies then outstanding would exceed $150,000,000, as determined by
the Administrative Agent.
(c) Infinity shall give the applicable Issuing Lender and the
Administrative Agent written or telecopy notice not later than 10:00 a.m., New
York City time, five Business Days (or such shorter period as shall be
acceptable to such Issuing Lender) prior to any proposed issuance of a Letter of
Credit. Each such notice shall refer to this Agreement and shall specify (i) the
date on which such Letter of Credit is to be issued (which shall be a Business
Day) and the face amount of such Letter of Credit, (ii) the name and address of
the beneficiary, (iii) whether such Letter of Credit is a Financial Letter of
Credit or a Non-Financial Letter of Credit (subject to confirmation of such
status by the Administrative Agent), (iv) whether such Letter of Credit shall
permit a single drawing or multiple drawings, (v) the form of the documents
required to be presented at the time of any drawing (together with the exact
wording of such documents or copies thereof), (vi) the expiry date of such
Letter of Credit (which shall conform to the provisions of paragraph (b) above)
and (vii) if such Letter of Credit is to be in a Foreign Currency, the relevant
Foreign Currency. The Administrative Agent shall give to each Lender prompt
written or telecopy advice of the issuance of any Letter of Credit. Each
determination by the Administrative Agent as to whether or not a Letter of
Credit constitutes a Financial Letter of Credit shall be conclusive and binding
upon Infinity and the Lenders.
(d) By the issuance of a Letter of Credit and without any further
action on the part of the applicable Issuing Lender or the Lenders in respect
thereof, the applicable Issuing Lender hereby grants to each Lender, and each
Lender hereby acquires from such Issuing Lender, a participation in such Letter
of Credit equal to such Lender's Revolving Credit Percentage at the time of any
drawing thereunder of the face amount of such Letter of Credit, effective upon
the issuance of such Letter of Credit. In addition, the applicable Issuing
Lender hereby grants to each Lender, and each Lender hereby acquires from such
Issuing Lender, a participation in each Designated Letter of Credit equal to
such Lender's Revolving Credit Percentage at the time of any drawing thereunder
of the face amount of such Designated Letter of Credit, effective on the date
such Designated Letter of Credit is designated as a
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Letter of Credit hereunder. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of each Issuing Lender, in accordance
with paragraph (f) below, such Lender's Revolving Credit Percentage of each
unreimbursed LC Disbursement made by such Issuing Lender; provided, however,
that the Lenders shall not be obligated to make any such payment with respect to
any payment or disbursement made under any Letter of Credit to the extent
resulting from the gross negligence or wilful misconduct of such Issuing Lender.
(e) Each Lender acknowledges and agrees that its acquisition of
participations pursuant to paragraph (d) above in respect of Letters of Credit
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender or Infinity may have
against any Issuing Lender, Infinity or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the conditions specified in Article IV;
(iii) any adverse change in the condition (financial or otherwise) of Infinity
or any of its Subsidiaries; (iv) any breach of this Agreement by Infinity or any
Lender; or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
(f) On the date on which it shall have ascertained that any documents
presented under a Letter of Credit appear to be in conformity with the terms and
conditions of such Letter of Credit, the applicable Issuing Lender shall give
written or telecopy notice to Infinity and the Administrative Agent of the
amount of the drawing and the date on which payment thereon has been or will be
made. If the applicable Issuing Lender shall not have received from Infinity the
payment required pursuant to paragraph (g) below by 12:00 noon, New York City
time, two Business Days after the date on which payment of a draft presented
under any Letter of Credit has been made, such Issuing Lender shall so notify
the Administrative Agent, which shall in turn promptly notify each Lender,
specifying in the notice to each Lender such Lender's Revolving Credit
Percentage of such LC Disbursement. Each Lender shall pay to the Administrative
Agent, not later than 2:00 p.m., New York City time, on such second Business
Day, such Lender's Revolving Credit Percentage of such LC Disbursement (which
obligation shall be expressed in Dollars only), which the Administrative Agent
shall promptly pay to the applicable Issuing Lender. The Administrative Agent
will promptly remit to each Lender such Lender's Revolving Credit Percentage of
any amounts subsequently received by the Administrative Agent from Infinity in
respect of such LC Disbursement; provided that (i) amounts so received for the
account of any Lender prior to payment by such Lender of amounts required to be
paid by it hereunder in respect of any LC Disbursement and (ii) amounts
representing interest at the rate provided in paragraph (g) below on any LC
Disbursement for the period prior to the payment by such Lender of such amounts
shall in each case be remitted to the applicable Issuing Lender.
(g) If an Issuing Lender shall pay any draft presented under a Letter
of Credit, Infinity shall pay to such Issuing Lender an amount equal to the
amount of such draft before 12:00 noon, New York City time, on the second
Business Day immediately following the date of payment of such draft, together
with interest (if any) on such amount at a rate per annum equal to the interest
rate in effect for ABR Loans (or, in the case of Foreign Currency-denominated
Letters of Credit, the rate which would reasonably and customarily be charged by
such Issuing Lender on outstanding loans denominated in the relevant Foreign
Currency) from (and including) the date of payment of such draft to (but
excluding) the date on which either Infinity shall have repaid, or the Lenders
shall have refunded, such draft in full (which interest shall be payable on such
second Business Day and from time to time thereafter on demand until either
Infinity shall have repaid, or the Lenders shall have refunded, such draft in
full). In the event that such drawing shall be refunded by the Lenders as
provided in Section 2.7(f), Infinity shall
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pay to the Administrative Agent, for the account of the Lenders, quarterly on
the last day of each March, June, September and December, interest on the amount
so refunded at a rate per annum equal to the interest rate in effect for ABR
Loans from (and including) the date of such refunding to (but excluding) the
date on which the amount so refunded by the Lenders shall have been paid in full
in Dollars by Infinity. Each payment made to an Issuing Lender by Infinity
pursuant to this paragraph shall be made at such Issuing Lender's address for
notices specified herein in lawful money of (x) the United States of America (in
the case of payments made on Dollar-denominated Letters of Credit) or (y) the
applicable foreign jurisdiction (in the case of payments on Foreign
Currency-denominated Letters of Credit) and in immediately available funds. The
obligation of Infinity to pay the amounts referred to above in this paragraph
(g) (and the obligations of the Lenders under paragraphs (d) and (f) above)
shall be absolute, unconditional and irrevocable and shall be satisfied strictly
in accordance with their terms irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Issuing Lender Agreement or of the obligations of
Infinity under this Agreement or any Issuing Lender Agreement;
(ii) the existence of any claim, setoff, defense or other
right which Infinity or any other Person may at any time have against
the beneficiary under any Letter of Credit, the Agents, any Issuing
Lender or any Lender (other than the defense of payment in accordance
with the terms of this Agreement or a defense based on the gross
negligence or wilful misconduct of the applicable Issuing Lender) or
any other Person in connection with this Agreement or any other
transaction;
(iii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect;
provided that payment by the applicable Issuing Lender under such
Letter of Credit against presentation of such draft or document shall
not have constituted gross negligence or wilful misconduct;
(iv) payment by the applicable Issuing Lender under a Letter
of Credit against presentation of a draft or other document which does
not comply in any immaterial respect with the terms of such Letter of
Credit; provided that such payment shall not have constituted gross
negligence or wilful misconduct; or
(v) any other circumstance or event whatsoever, whether or not
similar to any of the foregoing; provided that such other circumstance
or event shall not have been the result of gross negligence or wilful
misconduct of the applicable Issuing Lender.
It is understood that in making any payment under a Letter of Credit
(x) such Issuing Lender's exclusive reliance on the documents presented to it
under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereof equals the
amount of such draft and whether or not any document presented pursuant to such
Letter of Credit proves to be forged, fraudulent or invalid in any respect, if
such document on its face appears to be in order, and whether or not any other
statement or any other document presented pursuant to such Letter of Credit
proves to be forged or invalid or any statement therein proves to be inaccurate
or untrue in any respect whatsoever, and (y) any noncompliance in any immaterial
respect of the documents presented under a Letter of Credit with the terms
thereof shall, in either case, not, in and of itself, be deemed wilful
misconduct or gross negligence of such Issuing Lender.
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(h) (i) Notwithstanding anything to the contrary contained in this
Agreement, for purposes of calculating any LC Fee or Commitment Fee payable in
respect of any Business Day, the Administrative Agent shall convert the amount
available to be drawn under any Letter of Credit denominated in Foreign Currency
into an amount of Dollars based upon the relevant Foreign Exchange Rate in
effect for such day. If on any date the Administrative Agent shall notify
Infinity that, by virtue of any change in the Foreign Exchange Rate of any
Foreign Currency in which a Letter of Credit is denominated, the Total Facility
Exposure shall exceed the Total Commitment then in effect, then, within three
Business Days after the date of such notice, Infinity shall prepay the Revolving
Credit Loans and/or the Swingline Loans to the extent necessary to eliminate
such excess. Each Issuing Lender which has issued a Letter of Credit denominated
in a Foreign Currency agrees to notify the Administrative Agent of the average
daily outstanding amount thereof for any period in respect of which LC Fees or
Commitment Fees are payable and, upon request by the Administrative Agent, for
any other date or period. For all purposes of this Agreement, determinations by
the Administrative Agent of the Dollar equivalent of any amount expressed in a
Foreign Currency shall be made on the basis of Foreign Exchange Rates reset
monthly (or on such other periodic basis as shall be selected by the
Administrative Agent in its sole discretion) and shall in each case be
conclusive absent manifest error.
(ii) Notwithstanding anything to the contrary contained in this Section
2.7, prior to demanding any reimbursement from the Lenders pursuant to Section
2.7(f) in respect of any Letter of Credit denominated in a Foreign Currency, the
relevant Issuing Lender shall convert Infinity's obligation under Section 2.7(g)
to reimburse such Issuing Lender in such Foreign Currency into an obligation to
reimburse such Issuing Lender (and, in turn, the Lenders) in Dollars. The amount
of any such converted obligation shall be computed based upon the relevant
Foreign Exchange Rate (as quoted by the Administrative Agent to such Issuing
Lender) in effect for the day on which such conversion occurs.
SECTION 2.8. Conversion and Continuation Options. (a) The relevant
Borrower may elect from time to time to convert Eurodollar Revolving Credit
Loans (or, subject to Section 2.10(f), a portion thereof) to ABR Revolving
Credit Loans on the last day of an Interest Period with respect thereto by
giving the Administrative Agent prior irrevocable notice of such election. The
relevant Borrower may elect from time to time to convert ABR Revolving Credit
Loans (subject to Section 2.10(f)) to Eurodollar Revolving Credit Loans by
giving the Administrative Agent at least three Business Days' prior irrevocable
notice of such election. Any such notice of conversion to Eurodollar Revolving
Credit Loans shall specify the length of the initial Interest Period therefor.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each Lender thereof. All or any part of outstanding Eurodollar Revolving Credit
Loans and ABR Revolving Credit Loans may be converted as provided herein,
provided that no Revolving Credit Loan may be converted into a Eurodollar
Revolving Credit Loan when any Event of Default has occurred and is continuing
and the Administrative Agent has or the Required Lenders have determined in its
or their sole discretion not to permit such a conversion.
(b) Any Eurodollar Revolving Credit Loans (or, subject to Section
2.10(f), a portion thereof) may be continued as such upon the expiration of the
then current Interest Period with respect thereto by the relevant Borrower
giving irrevocable notice to the Administrative Agent, not less than three
Business Days prior to the last day of the then current Interest Period with
respect thereto, of the length of the next Interest Period to be applicable to
such Revolving Credit Loans, provided that no Eurodollar Revolving Credit Loan
may be continued as such when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit such a continuation,
and provided, further, that if the relevant Borrower shall fail to give any
required notice as described above in this paragraph or if such continuation is
not permitted pursuant to the preceding proviso such Eurodollar Revolving Credit
Loans
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shall be automatically converted to ABR Revolving Credit Loans on the last day
of such then expiring Interest Period. Upon receipt of any notice from a
Borrower pursuant to this Section 2.8(b), the Administrative Agent shall
promptly notify each Lender thereof.
SECTION 2.9. Fees. (a) Infinity agrees to pay to the Administrative
Agent for the account of each Lender a Commitment Fee for the period from and
including the Closing Date to the Revolving Credit Maturity Date (or such
earlier date on which the Commitments shall terminate in accordance herewith),
computed at a per annum rate equal to the Applicable Commitment Fee Rate on the
average daily Commitment Fee Calculation Amount in respect of such Lender during
the period for which payment is made. All Commitment Fees shall be computed on
the basis of the actual number of days elapsed in a year of 360 days and shall
be payable quarterly in arrears on the last day of each March, June, September
and December, on the Revolving Credit Maturity Date or such earlier date on
which the Commitments shall be terminated, commencing on the first of such dates
to occur after the Closing Date.
(b) Infinity agrees to pay each Lender, through the Administrative
Agent, on the last day of each March, June, September and December and on the
Revolving Credit Maturity Date or the date on which the Commitment of such
Lender shall be terminated as provided herein and all Letters of Credit issued
hereunder shall have expired, a letter of credit fee (an "LC Fee") computed at a
per annum rate equal to the Applicable LC Fee Rate on such Lender's Revolving
Credit Percentage of the average daily undrawn amount of the Financial Letters
of Credit or Non-Financial Letters of Credit, as the case may be, outstanding
during the preceding quarter (or shorter period commencing with the Closing Date
or ending with the Revolving Credit Maturity Date or the date on which the
Commitment of such Lender shall have been terminated and all Letters of Credit
issued hereunder shall have expired). All LC Fees shall be computed on the basis
of the actual number of days elapsed in a year of 360 days.
(c) Infinity and CBS, jointly and severally, agree to pay, without
duplication, to the Administrative Agent, for its own account, the
administrative agent's fees ("Administrative Agent's Fees") provided for in the
Administrative Agent Fee Letter at the times provided therein.
(d) Infinity agrees to pay to each Issuing Lender, through the
Administrative Agent, for its own account, the applicable Issuing Lender Fees.
(e) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the relevant Lenders or to the Issuing Lenders. Once paid, none of the
Fees shall be refundable under any circumstances (other than corrections of
errors in payment).
SECTION 2.10. Interest on Loans; Eurodollar Tranches; Etc. (a) Subject
to the provisions of Section 2.11, Eurodollar Loans shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to (i) in the case of each Eurodollar Revolving
Credit Loan, the Eurodollar Rate for the Interest Period in effect for such Loan
plus the Applicable Eurodollar Margin and (ii) in the case of each Eurodollar
Competitive Loan, the Eurodollar Rate for the Interest Period in effect for such
Loan plus the Margin offered by the Lender making such Loan and accepted by the
relevant Borrower pursuant to Section 2.3. The Eurodollar Rate for each Interest
Period shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error. The Administrative Agent shall
promptly advise the relevant Borrower and each Lender of such determination.
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(b) Subject to the provisions of Section 2.11, ABR Loans shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 365 or 366 days, as the case may be, when determined by reference to the
Prime Rate and over a year of 360 days at all other times) at a rate per annum
equal to the Alternate Base Rate. The Alternate Base Rate shall be determined by
the Administrative Agent, and such determination shall be conclusive absent
manifest error.
(c) Subject to the provisions of Section 2.11, Quoted Swingline Loans
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 360 days) at a rate per annum equal to the relevant Quoted
Swingline Rate.
(d) Subject to the provisions of Section 2.11, each Absolute Rate Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal to the fixed rate of
interest offered by the Lender making such Loan and accepted by the relevant
Borrower pursuant to Section 2.3.
(e) Interest on each Loan shall be payable on each applicable Interest
Payment Date.
(f) Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations, repayments and prepayments of Eurodollar
Revolving Credit Loans hereunder and all selections of Interest Periods
hereunder in respect of Eurodollar Revolving Credit Loans shall be in such
amounts and shall be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of the Eurodollar Revolving
Credit Loans comprising each Eurodollar Tranche shall be equal to $50,000,000 or
a whole multiple of $5,000,000 in excess thereof. Unless otherwise agreed by the
Administrative Agent, in no event shall there be more than 25 Eurodollar
Tranches outstanding at any time.
(g) If no election as to the Type of Revolving Credit Loan is specified
in any notice of borrowing with respect thereto, then the requested Loan shall
be an ABR Loan. If no Interest Period with respect to a Eurodollar Revolving
Credit Loan is specified in any notice of borrowing, conversion or continuation,
then the relevant Borrower shall be deemed to have selected an Interest Period
of one month's duration.
SECTION 2.11. Default Interest. (a) If all or a portion of the
principal amount of any Loan shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans (whether or not
overdue) shall bear interest at a rate per annum which is equal to the rate that
would otherwise be applicable thereto pursuant to the provisions of Section 2.10
plus 2% and (b) if all or a portion of any LC Disbursement, any interest payable
on any Loan or LC Disbursement or any Fee or other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the rate otherwise applicable to ABR Loans pursuant to Section 2.10(b) plus 2%,
in each case, with respect to clauses (a) and (b) above, from the date of such
non-payment until such amount is paid in full (as well after as before
judgment).
SECTION 2.12. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Loan (i) the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon each
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period, or (ii) the Required Lenders shall have determined and
shall have notified the Administrative Agent that the Eurodollar Rate determined
or to be determined for such Interest Period will not adequately and fairly
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reflect the cost to such Lenders (as conclusively certified by such Lenders) of
making or maintaining Eurodollar Loans during such Interest Period, the
Administrative Agent shall, as soon as practicable thereafter, give written or
telecopy notice of such determination to the Borrowers and the Lenders. In the
event of any such determination, until the Administrative Agent shall have
advised the Borrowers and the Lenders that the circumstances giving rise to such
notice no longer exist, (i) any request by a Borrower for a Eurodollar
Competitive Loan pursuant to Section 2.3 to be made after such determination
shall be of no force and effect and shall be denied by the Administrative Agent,
(ii) any request by a Borrower for a Eurodollar Revolving Credit Loan pursuant
to Section 2.4 to be made after such determination shall be deemed to be a
request for an ABR Loan and (iii) any request by a Borrower for conversion into
or a continuation of a Eurodollar Revolving Credit Loan pursuant to Section 2.8
to be made after such determination shall have no force and effect (in the case
of a requested conversion) or shall be deemed to be a request for a conversion
into an ABR Loan (in the case of a requested continuation). Also, in the event
of any such determination, the relevant Borrower shall be entitled, in its sole
discretion, if the requested Loan has not been made, to cancel its acceptance of
the Competitive Bids or to cancel its Competitive Bid Request relating thereto.
Each determination by the Administrative Agent or the Required Lenders hereunder
shall be conclusive absent manifest error.
SECTION 2.13. Termination and Reduction of Commitments. (a) Upon at
least three Business Days' prior irrevocable written or telecopy notice to the
Administrative Agent, Infinity may at any time in whole permanently terminate,
or from time to time in part permanently reduce, the Commitments; provided,
however, that (i) each partial reduction of the Commitments shall be in a
minimum principal amount of $10,000,000 and in integral multiples of $1,000,000
in excess thereof and (ii) no such termination or reduction shall be made if,
after giving effect thereto and to any prepayments of the Loans made on the
effective date thereof, (x) the Outstanding Revolving Extensions of Credit of
any Lender would exceed such Lender's Commitment then in effect or (y) the Total
Facility Exposure would exceed the Total Commitment then in effect. The
Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.13(a).
(b) Except as otherwise provided in Section 2.21, each reduction in the
Commitments hereunder shall be made ratably among the Lenders in accordance with
their respective Commitments. Infinity agrees to pay to the Administrative Agent
for the account of the Lenders, on the date of termination or reduction of the
Commitments, the Commitment Fees on the amount of the Commitments so terminated
or reduced accrued through the date of such termination or reduction.
SECTION 2.14. Optional Prepayments of Revolving Credit Loans. The
relevant Borrower may at any time and from time to time prepay the Revolving
Credit Loans, in whole or in part, without premium or penalty, upon giving
irrevocable written or telecopy notice (or telephone notice promptly confirmed
by written or telecopy notice) to the Administrative Agent: (i) before 10:00
a.m., New York City time, three Business Days prior to prepayment, in the case
of Eurodollar Revolving Credit Loans, and (ii) before 10:00 a.m., New York City
time, one Business Day prior to prepayment, in the case of ABR Revolving Credit
Loans. Such notice shall specify the date and amount of prepayment and whether
the prepayment is of Eurodollar Revolving Credit Loans, ABR Revolving Credit
Loans or a combination thereof, and, if of a combination thereof, the amount
allocable to each. If a Eurodollar Revolving Credit Loan is prepaid on any day
other than the last day of the Interest Period applicable thereto, the relevant
Borrower shall also pay any amounts owing pursuant to Section 2.16. Upon receipt
of any such notice the Administrative Agent shall promptly notify each Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with (except in the
case of ABR Revolving Credit Loans) accrued interest to such date
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on the amount prepaid. Partial prepayments of Revolving Credit Loans shall be in
an aggregate principal amount of $10,000,000 or a whole multiple of $1,000,000
in excess thereof.
SECTION 2.15. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the Original Closing Date
any change in applicable law or regulation (including any change in the reserve
percentages provided for in Regulation D) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof shall change the basis of taxation of
payments to any Lender of the principal of or interest on any Eurodollar Loan or
Absolute Rate Loan made by such Lender (other than changes in respect of taxes
imposed on the overall net income of such Lender by the jurisdiction in which
such Lender has its principal office (or in which it holds any Eurodollar Loan
or Absolute Rate Loan) or by any political subdivision or taxing authority
therein and other than taxes that would not have been imposed but for the
failure of such Lender to comply with applicable certification, information,
documentation or other reporting requirements), or shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets of
or deposits with or for the account of such Lender, or shall impose on such
Lender or the London interbank market any other condition affecting this
Agreement or any Eurodollar Loan or Absolute Rate Loan made by such Lender, and
the result of any of the foregoing shall be to increase the cost to such Lender
of making or maintaining any Eurodollar Loan or Absolute Rate Loan or to reduce
the amount of any sum received or receivable by such Lender hereunder (whether
of principal, interest or otherwise) in respect of any Eurodollar Loan or
Absolute Rate Loan by an amount deemed by such Lender to be material, then the
relevant Borrower agrees to pay to such Lender as provided in paragraph (c)
below such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered. Notwithstanding the foregoing,
no Lender shall be entitled to request compensation under this paragraph with
respect to any Competitive Loan if the change giving rise to such request shall,
or in good faith should, have been taken into account in formulating the
Competitive Bid pursuant to which such Competitive Loan shall have been made.
(b) If any Lender or any Issuing Lender shall have determined that the
adoption after the Original Closing Date hereof of any law, rule, regulation or
guideline regarding capital adequacy, or any change in any law, rule, regulation
or guideline regarding capital adequacy or in the interpretation or
administration of any of the foregoing by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any lending office of such Lender) or
Issuing Lender or any Lender's or Issuing Lender's holding company with any
request or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Lender's or Issuing
Lender's capital or on the capital of such Lender's or Issuing Lender's holding
company, if any, as a consequence of this Agreement or the Loans made by such
Lender or the LC Exposure of such Lender or Letters of Credit issued by such
Issuing Lender pursuant hereto to a level below that which such Lender or
Issuing Lender or such Lender's or Issuing Lender's holding company could have
achieved but for such applicability, adoption, change or compliance (taking into
consideration such Lender's or Issuing Lender's policies and the policies of
such Lender's or Issuing Lender's holding company with respect to capital
adequacy) by an amount deemed by such Lender or Issuing Lender to be material,
then from time to time Infinity agrees to pay to such Lender or Issuing Lender
as provided in paragraph (c) below such additional amount or amounts as will
compensate such Lender or Issuing Lender or such Lender's or Issuing Lender's
holding company for any such reduction suffered.
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(c) A certificate of each Lender or Issuing Lender setting forth such
amount or amounts as shall be necessary to compensate such Lender or Issuing
Lender as specified in paragraph (a) or (b) above, as the case may be, and the
basis therefor in reasonable detail shall be delivered to the relevant Borrower
and shall be conclusive absent manifest error. The relevant Borrower shall pay
each Lender or Issuing Lender the amount shown as due on any such certificate
within 30 days after its receipt of the same. Upon the receipt of any such
certificate, the relevant Borrower shall be entitled, in its sole discretion, if
any requested Loan has not been made, to cancel its acceptance of the relevant
Competitive Bids or to cancel the Competitive Bid Request relating thereto,
subject to Section 2.16.
(d) Except as provided in this paragraph, failure on the part of any
Lender to demand compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital with respect to any
period shall not constitute a waiver of such Lender's right to demand
compensation with respect to any other period. The protection of this Section
2.15 shall be available to each Lender regardless of any possible contention of
the invalidity or inapplicability of the law, rule, regulation, guideline or
other change or condition which shall have occurred or been imposed so long as
it shall be customary for Lenders affected thereby to comply therewith. No
Lender shall be entitled to compensation under this Section 2.15 for any costs
incurred or reductions suffered with respect to any date unless it shall have
notified the relevant Borrower that it will demand compensation for such costs
or reductions under paragraph (c) above not more than 90 days after the later of
(i) such date and (ii) the date on which it shall have become aware of such
costs or reductions. Notwithstanding any other provision of this Section 2.15,
no Lender shall demand compensation for any increased cost or reduction referred
to above if it shall not at the time be the general policy or practice of such
Lender to demand such compensation in similar circumstances under comparable
provisions of other credit agreements, if any. In the event any Borrower shall
reimburse any Lender pursuant to this Section 2.15 for any cost and such Lender
shall subsequently receive a refund in respect thereof, such Lender shall so
notify such Borrower and, upon its request, will pay to such Borrower the
portion of such refund which such Lender shall determine in good faith to be
allocable to the cost so reimbursed. The covenants contained in this Section
2.15 shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
SECTION 2.16. Indemnity. Each Borrower agrees to indemnify each Lender
against any loss or expense described below which such Lender may sustain or
incur as a consequence of (a) any failure by such Borrower to fulfill on the
date of any borrowing hereunder the applicable conditions set forth in Article
IV, (b) any failure by such Borrower to borrow, continue or convert any Loan
hereunder after irrevocable notice of such borrowing, continuation or conversion
has been given or deemed given or Competitive Bids have been accepted pursuant
to Article II or (c) any payment, prepayment or conversion of a Eurodollar Loan
or Absolute Rate Loan made to such Borrower required by any other provision of
this Agreement or otherwise made or deemed made, whatever the circumstances may
be that give rise to such payment, prepayment or conversion, or any transfer of
any such Loan pursuant to Section 2.21 or 9.4(b), on a date other than the last
day of the Interest Period applicable thereto. The loss or expense for which
such Lender shall be indemnified under this Section 2.16 shall be equal to the
excess, if any, as reasonably determined by such Lender, of (i) its cost of
obtaining the funds for the Loan being paid, prepaid, converted or not borrowed,
continued or converted (assumed to be the Eurodollar Rate in the case of
Eurodollar Loans) for the period from the date of such payment, prepayment,
conversion or failure to borrow, continue or convert to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow, continue
or convert, the Interest Period for such Loan which would have commenced on the
date of such failure) over (ii) the amount of interest (as reasonably determined
by such Lender) that would be realized by such Lender in reemploying the funds
so paid, prepaid, converted or not borrowed, continued or converted for such
period or Interest Period, as the case
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may be; provided, however, that such amount shall not include any loss of a
Lender's margin or spread over its cost of obtaining funds as described above. A
certificate of any Lender setting forth any amount or amounts which such Lender
is entitled to receive pursuant to this Section 2.16 shall be delivered to the
relevant Borrower and shall be conclusive absent manifest error. This covenant
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
SECTION 2.17. Pro Rata Treatment; Funding Matters; Evidence of Debt.
(a) Except as required under Section 2.21, each payment or prepayment of
principal of any Revolving Credit Loan, each payment of interest on the
Revolving Credit Loans, each payment of the Commitment Fees pursuant to Section
2.9(a)(i), each payment of LC Fees, and each reduction of the Commitments, shall
be allocated pro rata among the Lenders in accordance with their respective
Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their outstanding Revolving
Credit Loans). Each Lender agrees that in computing such Lender's portion of any
Loan to be made hereunder, the Administrative Agent may, in its discretion,
round such Lender's percentage of such Loan to the next higher or lower whole
Dollar amount.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the relevant borrowing date that such Lender will not make
available to the Administrative Agent such Lender's portion of a borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such borrowing in accordance with
this Agreement and the Administrative Agent may, in reliance upon such
assumption, make available to the relevant Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have made such portion
available to the Administrative Agent, each of such Lender and the relevant
Borrower agrees to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to such Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of such Borrower, the
interest rate applicable at the time to the relevant Loan and (ii) in the case
of such Lender, the Federal Funds Effective Rate. If such Lender shall repay to
the Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such borrowing for the purposes of this Agreement;
provided that such repayment shall not release such Lender from any liability it
may have to such Borrower for the failure to make such Loan at the time required
herein.
(c) The failure of any Lender to make any Loan shall not in itself
relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender).
(d) Each Lender may at its option make any Eurodollar Loan by causing
any domestic or foreign branch or affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the
relevant Borrower to repay such Loan in accordance with the terms of this
Agreement.
(e) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness to such Lender resulting from
each Loan made by it from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under this Agreement.
The Administrative Agent shall maintain accounts in which it will record (i) the
amount of each Loan made hereunder, the Borrower with respect to each Loan, the
Type of each Loan and each Interest Period, if any, applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable
from each Borrower to each Lender hereunder and (iii) the
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amount of any sum received by the Administrative Agent hereunder from any
Borrower and each Lender's share thereof. The entries made in the accounts
maintained pursuant to this paragraph (e) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of any Borrower to repay the Loans in
accordance with their terms.
(f) In order to expedite the transactions contemplated by this
Agreement, each Subsidiary Borrower shall be deemed, by its execution and
delivery of a Subsidiary Borrower Request, to have appointed CBS to act as agent
on behalf of such Subsidiary Borrower for the purpose of (a) giving any notices
contemplated to be given by such Subsidiary Borrower pursuant to this Agreement,
including, without limitation, borrowing notices, prepayment notices,
continuation notices, conversion notices, competitive bid requests and
competitive bid acceptances or rejections and (b) paying on behalf of such
Subsidiary Borrower any Subsidiary Borrower Obligations owing by such Subsidiary
Borrower; provided, that each Subsidiary Borrower shall retain the right, in its
discretion, to directly give any or all of such notices or make any or all of
such payments.
(g) The Administrative Agent shall promptly notify the Lenders upon
receipt of any Subsidiary Borrower Designation and Subsidiary Borrower Request.
The Administrative Agent shall promptly notify the Swingline Lenders upon
receipt of any designation of a Subsidiary Borrower as a Swingline Borrower.
SECTION 2.18. Sharing of Setoffs. Except to the extent that this
Agreement provides for payments to be allocated to Revolving Credit Loans,
Swingline Loans or Competitive Loans, as the case may be, each Lender agrees
that if it shall, through the exercise of a right of banker's lien, setoff or
counterclaim against any Borrower, or pursuant to a secured claim under Section
506 of Title 11 of the United States Code or other security or interest arising
from, or in lieu of, such secured claim, received by such Lender under any
applicable bankruptcy, insolvency or other similar law or otherwise, or by any
other means (other than pursuant to any provision of this Agreement), obtain
payment (voluntary or involuntary) in respect of any category of its Loans or
such Lender's Revolving Credit Percentage of any LC Disbursement as a result of
which the unpaid principal portion of such Loans or the unpaid portion of such
Lender's Revolving Credit Percentage of the LC Disbursements shall be
proportionately less than the unpaid principal portion of such Loans or the
unpaid portion of the Revolving Credit Percentage of the LC Disbursements of any
other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in such Loans or the Revolving Credit
Percentage of the LC Disbursements of such other Lender, so that the aggregate
unpaid principal amount of such Loans and participations in such Loans held by
each Lender or the Revolving Credit Percentage of LC Disbursements and
participations in LC Disbursements held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all such Loans or LC
Disbursements then outstanding as the principal amount of such Loans or the
Revolving Credit Percentage of LC Disbursements of each Lender prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all such Loans or LC Disbursements outstanding prior to such
exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.18 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. Any Lender holding a participation in a
Loan or LC Disbursement deemed to have been so purchased may exercise any and
all rights of banker's lien, setoff or counterclaim with respect to any and all
moneys owing by any Borrower to such Lender by reason
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thereof as fully as if such Lender had made a Loan directly such Borrower or
issued a Letter of Credit for the account of Infinity in the amount of such
participation.
SECTION 2.19. Payments. (a) Except as otherwise expressly provided
herein, each Borrower shall make each payment (including principal of or
interest on any Loan or any Fees or other amounts) hereunder without setoff or
counterclaim and shall make each such payment not later than 12:00 noon, New
York City time, on the date when due in Dollars to the Administrative Agent at
its offices at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, in immediately available
funds.
(b) Whenever any payment (including principal of or interest on any
Loan or any Fees or other amounts) hereunder shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by each Borrower
hereunder to or for the benefit of a Non-U.S. Person shall be made, in
accordance with Section 2.19, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto imposed by or on behalf
of the United States or any political subdivision thereof, excluding taxes
imposed on (or measured by) such Non-U.S. Person's net income or net receipts,
franchise taxes, taxes on doing business or taxes imposed on capital or net
worth (all such nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If any
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder to a Non-U.S. Person, (i) the sum payable shall be
increased by the amount necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.20) such Non-U.S. Person shall receive an amount equal to the sum it would
have received had no such deductions been made, (ii) such Borrower shall make
such deductions and (iii) such Borrower shall pay the full amount deducted to
the relevant taxing authority or other Governmental Authority in accordance with
applicable law.
(b) The relevant Borrower agrees to pay and reimburse on demand all
transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any Governmental Authority in respect of this Agreement, any of the
Loans or the Letters of Credit (all such taxes, assessments or charges
hereinafter referred to as "Other Taxes").
(c) The relevant Borrower will indemnify each Lender (or Transferee)
and the Administrative Agent for the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed by the applicable jurisdiction on
amounts payable under this Section 2.20) paid by such Lender (or Transferee) or
the Administrative Agent, as the case may be, and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted by
the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days after the date such Lender (or
Transferee) or the Administrative Agent, as the case may be, makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by any Borrower in respect of any payment to a Non-U.S. Person,
such Borrower will furnish to the Administrative Agent, at its address referred
to in Section 9.1 for delivery to such Non-U.S. Person, the original or a
certified copy of a receipt (if available) evidencing payment thereof.
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(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.20 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder and of all other amounts payable hereunder.
(f) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity created
or organized in or under the laws of the United States of America, or any estate
or trust that is subject to federal income taxation regardless of the source of
its income (a "Non-U.S. Person") shall deliver to Infinity and the
Administrative Agent (or, in the case of a participant, to the Lender from which
the related participation shall have been purchased) two copies of either U.S.
Internal Revenue Service Form 1001 or Form 4224, or, in the case of a Non-U.S.
Person claiming exemption from U.S. federal withholding tax under Section 871(h)
or 881(c) of the Code with respect to payments of "portfolio interest", a Form
W-8, or any subsequent versions thereof or successors thereto (and, if such
Non-U.S. Person delivers a Form W-8, an annual certificate representing that
such Non-U.S. Person is not a "bank" for purposes of Section 881(c) of the Code,
is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of
the Code) of Infinity and is not a controlled foreign corporation related to
Infinity (within the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Non-U.S. Person claiming complete exemption
from U.S. federal withholding tax on all payments by any Borrower under this
Agreement. Such forms shall be delivered by each Non-U.S. Person promptly after
it becomes a party to this Agreement (or, in the case of any participant,
promptly after the date such participant purchases the related participation).
In addition, each Non-U.S. Person shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Person. Each Non-U.S. Person shall promptly notify Infinity at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to Infinity (or any other form of certification adopted by
the U.S. taxing authorities for such purpose). Unless Infinity and the
Administrative Agent (or, in the case of a participant, the Lender from which
the related participation shall have been purchased) have received forms or
other documents satisfactory to them indicating that payments hereunder are not
subject to United States withholding tax, the relevant Borrower or the
Administrative Agent shall withhold taxes from such payments at the applicable
statutory rate in the case of payments of interest to or for any Lender (or
Transferee) that is a Non-U.S. Person. Notwithstanding any other provision of
this Section 2.20(f), a Non-U.S. Person shall not be required to deliver any
form pursuant to this Section 2.20(f) that such Non-U.S. Person is not legally
able to deliver by reason of the adoption of any law, rule or regulation, or any
change in any law, rule or regulation or in the interpretation thereof, in each
case occurring after the date such Non-U.S. Person becomes a Lender (or
Transferee).
(g) No Borrower shall be required to pay any additional amounts to any
Non-U.S. Person in respect of United States withholding tax pursuant to
paragraph (a) above (i) if the obligation to pay such additional amounts would
not have arisen but for a failure by such Non-U.S. Person to comply with the
provisions of paragraph (f) above or (ii) in the case of a Transferee, to the
extent such additional amounts exceed the additional amounts that would have
been payable had no transfer or assignment to such Transferee occurred;
provided, however, that each Borrower shall be required to pay those amounts to
any Lender (or Transferee) that it was required to pay hereunder prior to the
failure of such Lender (or Transferee) to comply with the provisions of such
paragraph (f).
SECTION 2.21. Termination or Assignment of Commitments Under Certain
Circumstances. (a) Any Lender (or Transferee) claiming any additional amounts
payable pursuant to Section 2.15 or Section 2.20 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document requested by any Borrower or to change the jurisdiction of its
applicable lending office if the making of such a filing or change would avoid
the need for or
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reduce the amount of any such additional amounts which may thereafter accrue and
would not, in the sole determination of such Lender (or Transferee), be
otherwise disadvantageous to such Lender (or Transferee).
(b) In the event that (x) any Lender shall have delivered a notice or
certificate pursuant to Section 2.15, (y) any Borrower shall be required to make
additional payments to any Lender under Section 2.20, or (z) any Lender (a
"Non-Consenting Lender") shall withhold its consent to any amendment described
in clause (i) or (ii) of Section 9.8(b) as to which consents have been obtained
from Lenders having Total Facility Percentages aggregating at least 90%,
Infinity shall have the right, at its own expense, upon notice to such Lender
(or Lenders) and the Administrative Agent, (i) to terminate the Commitments of
such Lender (except in the case of clause (z) above) or (ii) to require such
Lender (or, in the case of clause (z) above, each Non-Consenting Lender) to
transfer and assign without recourse (in accordance with and subject to the
restrictions contained in Section 9.4) all its interests, rights and obligations
under this Agreement to one or more other financial institutions acceptable to
the Administrative Agent (which approval shall not be unreasonably withheld)
which shall assume such obligations; provided that (w) in the case of any
replacement of Non-Consenting Lenders, each assignee shall have consented to the
relevant amendment, (x) no such termination or assignment shall conflict with
any law, rule or regulation or order of any Governmental Authority, (y) the
Borrowers or the assignee (or assignees), as the case may be, shall pay to each
affected Lender in immediately available funds on the date of such termination
or assignment the principal of and interest accrued to the date of payment on
the Loans made by it hereunder and all other amounts accrued for its account or
owed to it hereunder and (z) Infinity may not terminate Commitments representing
more than 10% of the original aggregate Commitments pursuant to this paragraph
(b).
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
Infinity hereby represents and warrants, and each Subsidiary Borrower
by its execution and delivery of a Subsidiary Borrower Request represents and
warrants (to the extent specifically applicable to such Subsidiary Borrower), to
each of the Lenders that:
SECTION 3.1. Corporate Existence. Each of Infinity and each Material
Subsidiary: (a) is a corporation, partnership or other entity duly organized and
validly existing under the laws of the jurisdiction of its organization; (b) has
all requisite corporate or other power, and has all material governmental
licenses, authorizations, consents and approvals, necessary to own its assets
and carry on its business as now being or as proposed to be conducted, except
where the failure to have any of the foregoing would not result in a Material
Adverse Effect; and (c) is qualified to do business in all jurisdictions in
which the nature of the business conducted by it makes such qualification
necessary and where failure so to qualify would result in a Material Adverse
Effect.
SECTION 3.2. Financial Condition. (a) Each of (i) the consolidated
balance sheet of Infinity and its Consolidated Subsidiaries as at December 31,
1998, and the related consolidated statements of income and cash flows of
Infinity and its Consolidated Subsidiaries for the fiscal year ended on such
date, with the opinion thereon of KPMG LLP, and (ii) the unaudited consolidated
balance sheets of Infinity and its Consolidated Subsidiaries as at March 31,
1999 and June 30, 1999, and the related unaudited consolidated statements of
income and cash flows of Infinity and its Consolidated Subsidiaries for the
fiscal quarters ended on such dates, all certified by a Financial Officer of
Infinity,
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heretofore furnished to each of the Lenders, fairly present the consolidated
financial condition of Infinity and its Consolidated Subsidiaries as at such
dates and the consolidated results of their operations for the fiscal year or
fiscal quarter ended on such dates in accordance with GAAP (subject, in the case
of the statements referred to in clause (ii) above, to year-end audit
adjustments). Neither Infinity nor any of its Material Subsidiaries had on such
dates any known material contingent liability, except as referred to or
reflected or provided for in the Exchange Act Report or in such balance sheets
(or the notes thereto) as at such dates.
(b) There has been no material adverse change in the consolidated
financial condition, operations, assets, business or prospects taken as a whole
of Infinity and its Consolidated Subsidiaries from that set forth in the
consolidated financial statements of Infinity for the fiscal year ended December
31, 1998 referred to in Section 3.2(a) (it being agreed, however, that none of
(i) the reduction by any rating agency of any rating assigned to Indebtedness of
Infinity, (ii) non-cash provisions for loan losses and additions to valuation
allowances, (iii) any change in GAAP or compliance therewith and (iv) any legal
or arbitral proceedings which have been disclosed in the Exchange Act Report,
whether threatened, pending, resulting in a judgment or otherwise, prior to the
time a final judgment for the payment of money shall have been recorded against
Infinity or any Material Subsidiary by any Governmental Authority having
jurisdiction, and the judgment is non-appealable (or the time for appeal has
expired) and all stays of execution have expired or been lifted shall, in and of
itself, constitute such a material adverse change).
SECTION 3.3. Litigation. Except as disclosed to the Lenders in the
Exchange Act Report filed prior to the Closing Date or otherwise disclosed in
writing to the Lenders prior to the Closing Date, there are no legal or arbitral
proceedings, or any proceedings by or before any Governmental Authority, pending
or (to the knowledge of Infinity) threatened against Infinity or any of its
Material Subsidiaries which have resulted in a Material Adverse Effect (it being
agreed that any legal or arbitral proceedings which have been disclosed in the
Exchange Act Report, whether threatened, pending, resulting in a judgment or
otherwise, prior to the time a final judgment for the payment of money shall
have been recorded against Infinity or any Material Subsidiary by any
Governmental Authority having jurisdiction, and the judgment is non-appealable
(or the time for appeal has expired) and all stays of execution have expired or
been lifted shall not, in and of itself, be deemed to result in a Material
Adverse Effect). The "Exchange Act Report" shall mean, collectively, the Annual
Report of Infinity on Form 10-K and Form 10-K/A for the year ended December 31,
1998, each Report on Form 8-K of Infinity filed subsequent to December 31, 1998
and delivered to the Lenders prior to the date hereof, and the Report of
Infinity on Form 10-Q and Form 10-Q/A for the quarters ended March 31, 1999 and
June 30, 1999.
SECTION 3.4. No Breach, etc. None of the execution and delivery of
this Agreement, the consummation of the transactions herein contemplated and
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter or By-laws (or other
equivalent organizational documents) of any Borrower, or any applicable law or
regulation, or any order, writ, injunction or decree of any Governmental
Authority, or any material agreement or instrument to which Infinity or any of
its Material Subsidiaries is a party or by which any of them is bound or to
which any of them is subject, or constitute a default under any such agreement
or instrument, or result in the creation or imposition of any Lien upon any of
the revenues or assets of Infinity or any of its Material Subsidiaries pursuant
to the terms of any such agreement or instrument. Neither Infinity nor any of
its Material Subsidiaries is in default under or with respect to any of its
material contractual obligations in any respect which would have a Material
Adverse Effect.
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SECTION 3.5. Corporate Action. Each Borrower has all necessary
corporate power and authority to execute, deliver and perform its obligations
under this Agreement; the execution and delivery by each Borrower of this
Agreement (or, in the case of each Subsidiary Borrower, the relevant Subsidiary
Borrower Request), and the performance by each Borrower of this Agreement, have
been duly authorized by all necessary corporate action on such Borrower's part;
this Agreement (or, in the case of each Subsidiary Borrower, the relevant
Subsidiary Borrower Request) has been duly and validly executed and delivered by
each Borrower; and this Agreement constitutes a legal, valid and binding
obligation of each Borrower, enforceable in accordance with its terms except as
such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws of general
applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 3.6. Approvals. No authorizations, approvals or consents of,
and no filings or registrations with, any Governmental Authority are necessary
for the execution, delivery or performance by each Borrower of this Agreement or
for the validity or enforceability hereof.
SECTION 3.7. ERISA. Infinity and, to the best of its knowledge, its
ERISA Affiliates have fulfilled their respective obligations under the minimum
funding standards of ERISA and the Code with respect to each Plan and are in
compliance in all material respects with the currently applicable provisions of
ERISA and the Code except where any failure or non-compliance would not result
in a Material Adverse Effect.
SECTION 3.8. Taxes. As of the Closing Date, United States Federal
income tax returns of CBS and its Material Subsidiaries have been examined and
closed through the fiscal year of CBS ended December 31, 1989. Infinity and its
Material 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
have paid all taxes shown as due on such returns or pursuant to any assessment
received by Infinity or any of its Material Subsidiaries, except those being
contested and reserved against in accordance with Section 5.2.
SECTION 3.9. Investment Company Act. No Borrower is an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
SECTION 3.10. Hazardous Materials. Infinity 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 has not resulted in a Material Adverse
Effect. Infinity 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 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 letter issued, entered,
promulgated or approved thereunder, except to the extent failure to comply would
not result in a Material Adverse Effect.
SECTION 3.11. Material Subsidiaries. Set forth in Schedule 3.11 is a
complete and correct list, as of the Closing Date, of all Material Subsidiaries.
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SECTION 3.12. No Material Misstatements. No written information,
report, financial statement, exhibit or schedule (the "Information") furnished
by or on behalf of Infinity to the Administrative Agent or any Lender in
connection with the syndication of the Commitments or the negotiation of this
Agreement or included in this Agreement or delivered pursuant hereto contained
as of the time it was furnished any material misstatement of fact or omitted as
of such time to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were, are or will be
made, not misleading; provided that the foregoing representation and warranty is
made only to the best of Infinity's knowledge in the case of Information
relating to Outdoor Systems and its Subsidiaries furnished prior to the Outdoor
Systems Merger Date (which knowledge, until the Outdoor Systems Merger Date,
will be principally based upon public disclosure by Outdoor Systems); and
provided, further, that with respect to Information consisting of statements,
estimates and projections regarding the future performance of Infinity and its
respective Subsidiaries ("Projections"), no representation or warranty is made
other than that such Projections have been prepared in good faith utilizing due
and careful consideration and the best information available to Infinity at the
time of preparation thereof.
SECTION 3.13. Ownership of Property. Each of Infinity and each of its
Material Subsidiaries has good record and marketable title in fee simple to, or
a valid leasehold interest in, all its real property, and good title to, or a
valid leasehold interest in, all its other Property, except to the extent that
the failure to have such title would not result in a Material Adverse Effect.
SECTION 3.14. Intellectual Property. Each of Infinity and each of its
Material Subsidiaries maintains, and is in compliance in all material respects
with, appropriate policies and procedures for establishing and protecting their
respective rights in Intellectual Property. Except as, in the aggregate, would
not result in a Material Adverse Effect, (a) each of Infinity and each of its
Material Subsidiaries owns, or is licensed to use, all Intellectual Property
necessary for the conduct of their respective businesses; (b) no claim has been
asserted and is pending by any Person challenging or questioning the use of any
Intellectual Property or the validity or effectiveness of any Intellectual
Property, nor does Infinity know of any valid basis for any such claim; and (c)
to the best knowledge of Infinity, the use of the Intellectual Property by
Infinity and its Material Subsidiaries does not infringe on the rights of any
Person.
SECTION 3.15. FCC Matters. Except as, in the aggregate, would not
result in a Material Adverse Effect: (a) Infinity and each of its Material
Subsidiaries have all the FCC Licenses necessary for the conduct of their
respective businesses; (b) Infinity and each of its Material Subsidiaries are in
substantial compliance with the Communications Act and with the rules and
regulations thereunder; (c) neither Infinity nor any of its Material
Subsidiaries is a party to, or has any knowledge of, any pending investigation,
notice of violation, order or complaint issued with respect to it by or before
the FCC; and (d) Infinity and its Material Subsidiaries have no reason to
believe that any FCC License will not be renewed in the ordinary course of
business.
SECTION 3.16. Year 2000 Matters. The statements contained in
Infinity's filings with the Securities and Exchange Commission with respect to
year 2000 compliance are true and correct as they relate to Infinity.
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ARTICLE IV.
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 4.1. Effectiveness. The effectiveness of this Agreement is
subject to the satisfaction of the following conditions (the date on which all
of such conditions shall have been satisfied, the "Closing Date"):
(a) Credit Agreement. The Administrative Agent shall have
received this Agreement, executed and delivered by a duly authorized
officer of Infinity and CBS.
(b) Closing Certificate. The Administrative Agent shall have
received a Closing Certificate, substantially in the form of Exhibit F,
of CBS and Infinity, with appropriate insertions and attachments.
(c) Consent. The Administrative Agent shall have (i) received
the consent of the Required Lenders (as defined in the Existing Credit
Agreement) authorizing the Administrative Agent to execute this
Agreement and (ii) executed this Agreement.
SECTION 4.2. Initial Loans to Subsidiary Borrowers. The obligation of
each Lender to make its initial Loan to a particular Subsidiary Borrower, if
designated as such after the Closing Date, is subject to the satisfaction of the
conditions that (a) Infinity shall have delivered to the Administrative Agent a
Subsidiary Borrower Designation for such Subsidiary Borrower and (b) such
Subsidiary Borrower shall have furnished to the Administrative Agent (i) a
Subsidiary Borrower Request, (ii) a Closing Certificate of such Subsidiary
Borrower, with appropriate insertions and attachments and (iii) one or more
executed legal opinions with respect to such Subsidiary Borrower, in form and
substance reasonably satisfactory to the Administrative Agent and including, to
the extent applicable, the opinions set forth in Exhibits B-7 and B-8. Infinity
may from time to time deliver a subsequent Subsidiary Borrower Designation with
respect to any Subsidiary Borrower, countersigned by such Subsidiary Borrower,
for the purpose of terminating such Subsidiary Borrower's designation as such,
so long as, on the effective date of such termination, all Subsidiary Borrower
Obligations in respect of such Subsidiary Borrower shall have been paid in full.
In addition, if on any date a Subsidiary Borrower shall cease to be a
Subsidiary, all Subsidiary Borrower Obligations in respect of such Subsidiary
Borrower shall automatically become due and payable on such date and no further
Loans may be borrowed by such Subsidiary Borrower hereunder.
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SECTION 4.3. All Credit Events. The obligation of each Lender to make
each Loan, and the obligation of each Issuing Lender to issue each Letter of
Credit, are subject to the satisfaction of the following conditions.
(a) The Administrative Agent shall have received a request
for, or notice of, such Credit Event if and as required by Section 2.3,
2.4, 2.6 or 2.7, as applicable.
(b) Each of the representations and warranties made by
Infinity and, in the case of a borrowing by a Subsidiary Borrower, by
such Subsidiary Borrower, in Article III, or in any certificate
delivered pursuant hereto, shall be true and correct in all material
respects on and as of the date of such Credit Event with the same
effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date in
which case such representations and warranties shall be true and
correct in all material respects as of such earlier date provided that,
with respect to any Loan made or Letter of Credit issued after the
Closing Date, in the event that the Infinity Ratings are then A-2 or
higher by S&P and P-2 or higher by Xxxxx'x, the representation in
Section 3.2(b) shall be excluded from the foregoing requirement.
(c) At the time of and immediately after giving effect to such
Credit Event no Default or Event of Default shall have occurred and be
continuing.
(d) After giving effect to such Credit Event, (i) the
Outstanding Revolving Extensions of Credit of each Lender shall not
exceed such Lender's Commitment then in effect and (ii) the Total
Facility Exposure shall not exceed the Total Commitment then in effect.
Each Credit Event shall be deemed to constitute a representation and warranty by
Infinity on the date of such Credit Event as to the matters specified in
paragraphs (b) and (c) of this Section 4.3.
ARTICLE V.
COVENANTS
Infinity covenants and agrees with each Lender that, as long as the
Commitments shall be in effect or the principal of or interest on any Loan shall
be unpaid, or there shall be any Aggregate LC Exposure, unless the Required
Lenders shall otherwise consent in writing:
SECTION 5.1. Financial Statements. Commencing on December 31, 1999,
Infinity shall deliver to each of the Lenders:
(a) within 55 days after the end of each of the first three
quarterly fiscal periods of each fiscal year of Infinity, consolidated
statements of income and cash flows of Infinity and its Consolidated
Subsidiaries for such period and for the period from the beginning of
the respective fiscal year to the end of such period, and the related
consolidated balance sheet as at the end of such period, setting forth
in each case in comparative form the corresponding consolidated
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figures for the corresponding period in the preceding fiscal year,
accompanied by a certificate of a Financial Officer of Infinity which
certificate shall state that such financial statements fairly present
the consolidated financial condition and results of operations of
Infinity and its Consolidated Subsidiaries in accordance with GAAP as
at the end of, and for, such period, subject to normal year-end audit
adjustments (provided that the requirement herein for the furnishing of
such quarterly financial statements may be fulfilled by providing to
the Lenders the report of Infinity to the SEC on Form 10-Q for the
applicable quarterly period, accompanied by the officer's certificate
described in the last sentence of this Section 5.1);
(b) within 105 days after the end of each fiscal year of
Infinity, consolidated statements of income and cash flows of Infinity
and its Consolidated Subsidiaries for such year and the related
consolidated balance sheet as at the end of such year, setting forth in
comparative form the corresponding consolidated figures for the
preceding fiscal year, and accompanied by an opinion thereon
(unqualified as to the scope of the audit) of independent certified
public accountants of recognized national standing, which opinion shall
state that such consolidated financial statements fairly present the
consolidated financial condition and results of operations of Infinity
and its Consolidated Subsidiaries as at the end of, and for, such
fiscal year (provided that the requirement herein for the furnishing of
annual financial statements may be fulfilled by providing to the
Lenders the report of Infinity to the SEC on Form 10-K for the
applicable fiscal year);
(c) promptly upon their becoming publicly available, copies of
all registration statements and regular periodic reports (including
without limitation any and all reports on Form 8-K), if any, which
Infinity or any of its Subsidiaries shall have filed with the SEC or
any national securities exchange;
(d) promptly upon the mailing thereof to the shareholders of
Infinity generally, copies of all financial statements, reports and
proxy statements so mailed;
(e) within 30 days after a Responsible Officer of Infinity
knows or has reason to believe that any of the events or conditions
specified below with respect to any Plan or Multiemployer Plan have
occurred or exist which would reasonably be expected to result in a
Material Adverse Effect, a statement signed by a senior financial
officer of Infinity setting forth details respecting such event or
condition and the action, if any, which Infinity or its ERISA Affiliate
proposes to take with respect thereto (and a copy of any report or
notice required to be filed with or given to PBGC by Infinity or an
ERISA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in Section
4043(b) of ERISA and the regulations issued thereunder, with
respect to a Plan, as to which PBGC has not by regulation
waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event
(provided that a failure to meet the minimum funding standard
of Section 412 of the Code or Section 302 of ERISA shall be a
reportable event regardless of the issuance of any waiver in
accordance with Section 412(d) of the Code);
(ii) the filing under Section 4041 of ERISA of a
notice of intent to terminate any Plan or the termination of
any Plan;
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(iii) the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by Infinity or any ERISA Affiliate of a notice from a
Multiemployer Plan that such action has been taken by PBGC
with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal by Infinity
or any ERISA Affiliate under Section 4201 or 4204 of ERISA
from a Multiemployer Plan, or the receipt by Infinity or any
ERISA Affiliate of notice from a Multiemployer Plan that it is
in reorganization or insolvency pursuant to Section 4241 or
4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against Infinity or any ERISA Affiliate
to enforce Section 515 of ERISA, which proceeding is not
dismissed within 30 days; and
(vi) a failure to make a required installment or
other payment with respect to a Plan (within the meaning of
Section 412(n) of the Code), in which case the notice required
hereunder shall be provided within 10 days after the due date
for filing notice of such failure with the PBGC;
(f) promptly after a Responsible Officer of Infinity knows or
has reason to believe that any Default or Event of Default has
occurred, a notice of such Default or Event of Default describing it in
reasonable detail and, together with such notice or as soon thereafter
as possible, a description of the action that Infinity has taken and
proposes to take with respect thereto;
(g) promptly after a Responsible Officer of Infinity knows
that any change has occurred in CBS's Debt Rating by either Rating
Agency, a notice describing such change; and
(h) promptly from time to time such other information
regarding the financial condition, operations or business of Infinity
or any of its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required to be
filed under ERISA) as any Lender through the Administrative Agent may
reasonably request.
Infinity will furnish to the Administrative Agent and each Lender, at the time
it furnishes each set of financial statements pursuant to paragraph (a) or (b)
above, a certificate (which may be a copy in the case of each Lender) of a
Financial Officer of Infinity (a "Compliance Certificate") (i) to the effect
that no Default or Event of Default has occurred and is continuing (or, if any
Default or Event of Default has occurred and is continuing, describing it in
reasonable detail and describing the action that Infinity has taken and proposes
to take with respect thereto), and (ii) setting forth in reasonable detail the
computations (including any pro forma calculations as described in Section
1.2(c)) necessary to determine whether Infinity is in compliance with the
Financial Covenants as of the end of the respective quarterly fiscal period or
fiscal year.
SECTION 5.2. Corporate Existence, Etc. Infinity will, and will cause
each of its Material Subsidiaries to, preserve and maintain its legal existence
and all of its material rights, privileges and franchises (provided that (a)
nothing in this Section 5.2 shall prohibit any transaction expressly permitted
under Section 5.4 and (b) Infinity or such Material Subsidiary shall not be
required to preserve or maintain any such right, privilege or franchise if the
Board of Directors of Infinity or such Material Subsidiary, as the case may be,
shall determine that the
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preservation or maintenance thereof is no longer desirable in the conduct of the
business of Infinity or such Material Subsidiary, as the case may be); comply
with the requirements of all applicable laws, rules, regulations and orders of
Governmental Authorities (including, without limitation, all Environmental Laws)
and with all contractual obligations if failure to comply with such requirements
or obligations would reasonably be expected to result in a Material Adverse
Effect; pay and discharge all material taxes, assessments, governmental charges,
levies or other obligations of whatever nature imposed on it or on its income or
profits or on any of its Property prior to the date on which penalties attach
thereto, except for any such tax, assessment, charge, levy or other obligation
the payment of which is being contested in good faith and by proper proceedings
and against which adequate reserves are being maintained; maintain all its
Property used or useful in its business in good working order and condition,
ordinary wear and tear excepted, all as in the judgment of Infinity or such
Material Subsidiary may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times
(provided that Infinity or such Material Subsidiary shall not be required to
maintain any such Property if the failure to maintain any such Property is, in
the judgment of Infinity or such Material Subsidiary, desirable in the conduct
of the business of Infinity or such Material Subsidiary); keep proper books of
records and accounts in which entries that are full, true and correct in all
material respects shall be made in conformity with GAAP; and permit
representatives of any Lender, during normal business hours upon reasonable
advance notice, to inspect any of its books and records and to discuss its
business and affairs with its Financial Officers or their designees, all to the
extent reasonably requested by such Lender.
SECTION 5.3. Insurance. Infinity will, and will cause each of its
Material Subsidiaries to, keep insured by financially sound and reputable
insurers all Property of a character usually insured by corporations engaged in
the same or similar business and similarly situated against loss or damage of
the kinds and in the amounts consistent with prudent business practice and carry
such other insurance as is consistent with prudent business practice (it being
understood that self-insurance shall be permitted to the extent consistent with
prudent business practice).
SECTION 5.4. Prohibition of Fundamental Changes. Infinity will not, and
will not permit any of its Material Subsidiaries to (i) enter into any
transaction of merger, consolidation, liquidation or dissolution or (ii) Dispose
of, in one transaction or a series of related transactions, all or a substantial
part (determined by reference to Infinity and its Subsidiaries taken as a whole)
of its business or Property, whether now owned or hereafter acquired (excluding
(x) financings by way of sales of receivables or inventory, (y) inventory or
other Property Disposed of in the ordinary course of business and (z) obsolete
or worn-out Property, tools or equipments no longer used or useful in its
business). Notwithstanding the foregoing provisions of this Section 5.4:
(a) any Subsidiary of Infinity may be merged or consolidated
with or into: (i) Infinity if Infinity shall be the continuing or
surviving corporation or (ii) any other such Subsidiary; provided that
(x) if any such transaction shall be between a Subsidiary and a Wholly
Owned Subsidiary, such Wholly Owned Subsidiary shall be the continuing
or surviving corporation and (y) if any such transaction shall be
between a Subsidiary and a Subsidiary Borrower, the continuing or
surviving corporation shall be a Subsidiary Borrower;
(b) any Subsidiary of Infinity may distribute, dividend or
Dispose of any of or all its Property (upon voluntary liquidation or
otherwise) to Infinity or a Wholly Owned Subsidiary of Infinity;
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(c) Infinity may merge or consolidate with or into any other
Person if (i) either (x) Infinity is the continuing or surviving
corporation or (y) the corporation formed by such consolidation or into
which Infinity is merged shall be a corporation organized under the
laws of the United States of America, any State thereof or the District
of Columbia and shall expressly assume the obligations of Infinity
hereunder pursuant to a written agreement and shall have delivered to
the Administrative Agent such agreement and a certificate of a
Responsible Officer and an opinion of counsel to the effect that such
merger or consolidation complies with this Section 5.4(c), and (ii)
after giving effect thereto and to any repayment of Loans to be made
upon consummation thereof (it being expressly understood that no
repayment of Loans is required solely by virtue thereof), no Default or
Event of Default shall have occurred and be continuing;
(d) any Subsidiary of Infinity may merge or consolidate with
or into any other Person if, after giving effect thereto and to any
repayment of Loans to be made upon the consummation thereof (it being
expressly understood that, except as otherwise expressly provided in
Section 4.2 with respect to Subsidiary Borrowers, no repayment of Loans
is required solely by virtue thereof), no Default or Event of Default
shall have occurred and be continuing; and
(e) Infinity or any Subsidiary of Infinity may Dispose of its
Property if, after giving effect thereto and to any repayment of Loans
to be made upon the consummation thereof (it being expressly understood
that, except as otherwise expressly provided in Section 4.2 with
respect to Subsidiary Borrowers, no repayment of Loans is required
solely by virtue thereof), no Default or Event of Default shall have
occurred and be continuing.
SECTION 5.5. Limitation on Liens. Infinity will not, and will not
permit any of its Material Subsidiaries to, create, incur, assume or suffer to
exist any Lien upon any of its Property, or enter into any Sale/Leaseback with
respect to any such Property, whether now owned or hereafter acquired; provided
that the foregoing restrictions shall not apply to:
(a) Liens imposed by any Governmental Authority for taxes,
assessments or charges not yet due and payable or which are being
contested in good faith and by appropriate proceedings if adequate
reserves with respect thereto are maintained;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, architects' or other like Liens arising in the ordinary
course of business which are not overdue for a period of more than 30
days or which are being contested in good faith and by appropriate
proceedings;
(c) Liens securing judgments or to perfect an appeal of any
order or decree but only to the extent, for an amount and for a period
not resulting in an Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(e) pledges or deposits to secure the performance of bids,
trade contracts (other than for borrowed money), leases, statutory
obligations to secure surety, appeal or performance bonds and
contractual and other obligations of a like nature incurred in the
ordinary course of business and not involving the borrowing of money;
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(f) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto and Liens under leases and subleases which, in the aggregate,
are not material in amount, and which do not interfere in any material
respects with the ordinary conduct of the business of Infinity and its
Subsidiaries taken as a whole;
(g) Liens on Property of any Subsidiary of Infinity or of any
Person which is or was merged with or into Infinity or any Subsidiary
thereof, provided that such Liens are or were in existence at the time
such Person becomes or became a Subsidiary of Infinity or such Person
merged with or into Infinity or any Subsidiary thereof, as the case may
be, were not created in anticipation thereof other than to finance the
purchase thereof and are not spread to cover any Property other than
the Property covered at the time of the relevant transaction;
(h) Liens upon real and/or personal property acquired (by
purchase, construction, foreclosure, deed in lieu of foreclosure or
otherwise) by Infinity or any of its Subsidiaries, each of which Liens
either (A) existed on such Property before the time of its acquisition
and was not created in anticipation thereof or (B) was created solely
for the purpose of securing Indebtedness representing, or incurred to
finance, refinance or refund, all or a part of the cost (including the
cost of construction) of such Property or improvements thereon;
provided that no such Lien shall extend to or cover any Property of
Infinity or such Subsidiary other than the respective Property so
acquired and improvements thereon;
(i) mortgages on Property securing indebtedness in favor of
the United States of America or any state thereof or any department,
agency or instrumentality or political subdivision of the United States
of America or any state thereof, incurred for the purpose of financing
all or any part of the purchase price or the cost of construction of
the Property subject to such mortgages (including without limitation
such debt secured by such mortgages in connection with pollution
control, industrial revenue or similar financings) or incurred to
secure progress, advance or other payments pursuant to any contract or
provision of any statute;
(j) Liens securing Indebtedness owed to Infinity or to any
Wholly Owned Subsidiary of Infinity;
(k) Liens (i) upon the receivables and inventory of Infinity
or any of its Subsidiaries to secure Indebtedness resulting from
financings of such receivables and inventory in an aggregate amount not
greater than $400,000,000 less the aggregate amount of Indebtedness
that is secured pursuant to clause (ii) below, provided that the terms
of such Indebtedness do not provide for any recourse to Infinity or any
Material Subsidiary (except to the extent of breaches of
representations and warranties of Infinity or any of its Subsidiaries
in connection with such financings and other recourse customary in
connection with "off-balance sheet" financings) and (ii) upon the
Property of Infinity to secure Indebtedness of Infinity in an aggregate
amount not greater than $125,000,000;
(l) Sale/Leasebacks consummated prior to the Closing Date;
(m) any Sale/Leaseback of assets of Infinity owned on the
Closing Date and listed on Schedule 5.5(m);
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(n) additional Liens upon real and/or personal property, and
additional Sale/Leasebacks, provided that the sum of (i) the aggregate
principal amount of the obligations secured by such Liens (other than
Indebtedness as defined in clause (f) of the definition thereof which
has not been assumed by Infinity or any of its Subsidiaries and where
the Lien relates to Property acquired by Infinity or any of its
Subsidiaries in satisfaction, in whole or in part, of indebtedness to
Infinity or any of its Subsidiaries, in the ordinary course of business
(any such Indebtedness, "Specified Section 5.5(n) Indebtedness")) and
(ii) the aggregate Sale/Leaseback Attributable Debt with respect to
such Sale/Leasebacks shall not exceed $125,000,000 at any one time
outstanding; and
(o) any extension, renewal or replacement of the foregoing;
provided, however, that, except to the extent otherwise permitted by
this Section 5.5 (including Section 5.5(n)), the Liens permitted under
this paragraph shall not be spread to cover any additional Indebtedness
or Property (other than a substitution of like Property or improvements
on such Property or other Property of equivalent value).
SECTION 5.6. Limitation on Subsidiary Indebtedness. Infinity will not
permit any of its Subsidiaries to create, incur, assume or suffer to exist any
Indebtedness (which includes, for the purposes of this Section 5.6, any
preferred stock), except (i) Excluded Indebtedness, (ii) Indebtedness of any
Subsidiary Borrower under this Agreement and (iii) Indebtedness incurred on any
date when, after giving effect thereto, the aggregate principal amount of
Indebtedness incurred pursuant to this clause (iii) that is outstanding on such
date (it being understood that, for the purposes of this clause (iiv), the term
"Indebtedness" does not include borrowings under this Agreement or Excluded
Indebtedness) does not exceed $300,000,000 at any time.
SECTION 5.7. Consolidated Leverage Ratio. Infinity will not permit the
Consolidated Leverage Ratio at the end of any period of four consecutive fiscal
quarters ending on any date set forth below to be greater than the ratio set
forth below opposite such date:
Date Ratio
---- -----
12/31/99 and 3/31/00 4.00 to 1
6/30/00 and 9/30/00 3.75 to 1
12/31/00 and thereafter 3.50 to 1
SECTION 5.8. Consolidated Coverage Ratio. Infinity will not permit the
Consolidated Coverage Ratio for any period of four consecutive fiscal quarters
to be less than 3.00 to 1.
SECTION 5.9. Use of Proceeds. On and after the Closing Date, each
Borrower will use the proceeds of the Loans and will use the Letters of Credit
hereunder solely for general corporate purposes (in each case in compliance with
all applicable legal and regulatory requirements, including, without limitation,
Regulation U and the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as amended, and the regulations thereunder), provided that
neither any Agent nor any Lender shall have any responsibility as to the use of
any of such proceeds.
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SECTION 5.10. Transactions with Affiliates. Infinity will not, and will
not permit any of its Material Subsidiaries to, directly or indirectly enter
into any material transaction with any Affiliate of Infinity except on terms at
least as favorable to Infinity or such Subsidiary as it could obtain on an
arm's-length basis.
SECTION 5.11. Limitation on Negative Pledge Clauses. Infinity will not,
and will not permit any of its Material Subsidiaries to, enter into any
contractual obligation (a "Lien Restriction") in connection with the incurrence
of Indebtedness for Borrowed Money which, with respect to any material asset of
Infinity or any of its Material Subsidiaries, would prohibit Infinity or such
Material Subsidiary from granting a Lien on such asset as collateral security
for the obligations of Infinity hereunder or, as applicable, a Guarantee of such
obligations by such Material Subsidiary (collectively, "Credit Obligations"),
except (a) Lien Restrictions with respect to any asset encumbered by a Lien
permitted by Section 5.5, (b) Lien Restrictions with respect to any asset (or
any proceeds thereof) which are comparable to Lien Restrictions affecting such
asset on the Original Closing Date, (c) Lien Restrictions included in the
documentation governing the terms of any Indebtedness of any Person which is
acquired by Infinity or any of its Material Subsidiaries after the Original
Closing Date, which Indebtedness was outstanding prior to the date of
acquisition of such Person and was not created in anticipation thereof and (d)
Lien Restrictions in connection with securitizations or other transactions
involving sales of receivables affecting only such receivables. It is understood
that an "equal and ratable" clause shall not be deemed to constitute a Lien
Restriction so long as such clause would permit the obligations entitled to the
benefit of such clause and the applicable Credit Obligations to be secured by
Liens on the relevant assets on a pari passu basis.
ARTICLE VI.
EVENTS OF DEFAULT.
In case of the happening of any of the following events ("Events of
Default"):
(a) (i) any Borrower shall default in the payment when due of
any principal of any Loan or (ii) any Borrower shall default in the
payment when due of any interest on any Loan, any reimbursement
obligation in respect of any LC Disbursement, any Fee or any other
amount payable by it hereunder and, in the case of this clause (ii),
such default shall continue unremedied for a period of five Business
Days;
(b) any representation, warranty or certification made or
deemed made herein (or in any modification or supplement hereto) by any
Borrower, or any certificate furnished to any Lender or the
Administrative Agent pursuant to the provisions hereof, shall prove to
have been false or misleading in any material respect as of the time
made, deemed made or furnished;
(c) (i) Infinity shall default in the performance of any of
its obligations under Section 5.1(f), Section 5.4, Section 5.5,
Sections 5.7 through 5.9 (inclusive) or Section 5.11 or (ii) Infinity
shall default in the performance of any of its other obligations under
this Agreement and, in the case of this clause (ii), such default shall
continue unremedied for a period of 15 days after notice thereof to
Infinity by the Administrative Agent or the Required Lenders (through
the Administrative Agent);
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(d) Infinity or any of its Subsidiaries shall (i) fail to pay
at maturity any Indebtedness in an aggregate amount in excess of
$100,000,000, or (ii) fail to make any payment (whether of principal,
interest or otherwise), regardless of amount, due in respect of, or
fail to observe or perform any other term, covenant, condition or
agreement contained in any agreement or instrument evidencing or
governing, any such Indebtedness in excess of $100,000,000 if the
effect of any failure referred to in this clause (ii) (x) is to cause,
or to permit the holder or holders of such Indebtedness or a trustee on
its or their behalf to cause, such Indebtedness to become due prior to
its stated maturity (provided that this subclause (ii)(x) shall not
apply to any provision that permits the holders, or a trustee on their
behalf, to cause Indebtedness to become due prior to its stated
maturity because of the failure to deliver to such holders or such
trustee financial statements or certificates for any Subsidiary that is
not required by law or regulation to file financial statements with the
SEC, unless such Indebtedness has become due prior to its stated
maturity as a result of such failure) or (y) has caused such
Indebtedness to become due prior to its stated maturity (it being
agreed that for purposes of this paragraph (d) only (other than
subclause (ii)(x) of this paragraph (d)), the term "Indebtedness" shall
include obligations under any interest rate protection agreement,
foreign currency exchange agreement or other interest or exchange rate
hedging agreement and that the amount of any Person's obligations under
any such agreement shall be the net amount that such Person could be
required to pay as a result of a termination thereof by reason of a
default thereunder);
(e) Infinity or any of its Material Subsidiaries shall admit
in writing its inability, or be generally unable, to pay its debts as
such debts become due;
(f) Infinity or any of its Material Subsidiaries shall (i)
apply for or consent to the appointment of, or the taking of possession
by, a receiver, trustee or liquidator of itself or of all or a
substantial part of its Property, (ii) make a general assignment for
the benefit of its creditors, (iii) commence a voluntary case under the
Bankruptcy Code (as now or hereafter in effect), (iv) file a petition
seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or readjustment
of debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code, or (vi) take any corporate
action for the purpose of effecting any of the foregoing;
(g) a proceeding or a case shall be commenced, without the
application or consent of Infinity or any of its Material Subsidiaries,
in any court of competent jurisdiction, seeking (i) its liquidation,
reorganization, dissolution or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of Infinity or such Material
Subsidiary or of all or any substantial part of its assets or (iii)
similar relief in respect of Infinity or such Material Subsidiary under
any law relating to bankruptcy, insolvency, reorganization, winding-up,
or composition or adjustment of debts, and such proceeding or case
shall continue undismissed, or an order, judgment or decree approving
or ordering any of the foregoing shall be entered and continue unstayed
and in effect, for a period of 60 or more days; or an order for relief
against Infinity or such Material Subsidiary shall be entered in an
involuntary case under the Bankruptcy Code;
(h) a final judgment or judgments for the payment of money in
excess of $100,000,000 in the aggregate shall be rendered by one or
more courts, administrative tribunals or other bodies having
jurisdiction against Infinity and/or any of its Material Subsidiaries
and the same shall not be paid or discharged (or provision shall not be
made for such discharge), or a stay of execution
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thereof shall not be procured, within 60 days from the date of the date
of entry thereof and Infinity or the relevant Material Subsidiary shall
not, within said period of 60 days, or such longer period during which
execution of the same shall have been stayed, appeal therefrom and
cause the execution thereof to be stayed during such appeal;
(i) an event or condition specified in Section 5.1(e) shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events
or conditions, Infinity or any ERISA Affiliate shall incur or in the
good faith opinion of the Required Lenders shall be reasonably likely
to incur a liability to a Plan, a Multiemployer Plan or PBGC (or any
combination of the foregoing) which would constitute, in the good faith
determination of the Required Lenders, a Material Adverse Effect;
(j) a Change of Control shall have occurred or, with respect
to any period of 25 consecutive calendar months (whether commencing
before or after the date of this Agreement, but not before December 31,
1998), individuals who were directors of Infinity on the first day of
such period or who were nominated by such directors (or by directors in
a direct chain of directors so nominated) shall no longer occupy a
majority of the seats (other than vacant seats) on the Board of
Directors of Infinity (excluding by reason of the death or retirement
of any director);
(k) The guarantee by CBS contained in Article VIII shall
cease, for any reason, to be in full force and effect or CBS shall so
assert; or
(l) The guarantee by Infinity contained in Article VIII shall
cease, for any reason, to be in full force and effect or Infinity shall
so assert;
then and in every such event (other than an event with respect to Infinity
described in paragraph (f) or (g) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to Infinity, take any or all of the
following actions, at the same or different times: (I) terminate forthwith the
Commitments, (II) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of each Borrower accrued hereunder, shall
become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by each
Borrower, anything contained herein to the contrary notwithstanding, and (III)
require that Infinity deposit cash with the Administrative Agent, in an amount
equal to the Aggregate LC Exposure, as collateral security for the repayment of
any future LC Disbursements; and in any event with respect to any Borrower
described in paragraph (f) or (g) above, (A) if such Borrower is Infinity, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of each Borrower accrued hereunder, shall
automatically become due and payable and Infinity shall be required to deposit
cash with the Administrative Agent, in an amount equal to the Aggregate LC
Exposure, as collateral security for the repayment of any future drawings under
the Letters of Credit and (B) if such Borrower is a Subsidiary Borrower, the
principal of the Loans made to such Subsidiary Borrower then outstanding,
together with accrued interest thereon and all other liabilities of such
Subsidiary Borrower accrued hereunder, shall automatically become due and
payable, in each case without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by each Borrower, anything
contained herein to the contrary notwithstanding.
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ARTICLE VII.
THE AGENTS
In order to expedite the transactions contemplated by this Agreement,
each Agent is hereby appointed to act as Agent on behalf of the Lenders. Each of
the Lenders and the Issuing Lenders hereby irrevocably authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are specifically delegated to the Administrative Agent by the terms
and provisions hereof, together with such actions and powers as are reasonably
incidental thereto. The Administrative Agent is hereby expressly authorized by
the Lenders and the Issuing Lenders, without hereby limiting any implied
authority, (a) to receive on behalf of the Lenders all payments of principal of
and interest on the Loans and the LC Disbursements and all other amounts due to
the Lenders and Issuing Lenders hereunder, and promptly to distribute to each
Lender and Issuing Lender its proper share of each payment so received; (b) to
give notice on behalf of each of the Lenders to the Borrowers of any Event of
Default specified in this Agreement of which the Administrative Agent has actual
knowledge acquired in connection with its agency hereunder; and (c) to
distribute to each Lender and Issuing Lender copies of all notices, financial
statements and other materials delivered by any Borrower pursuant to this
Agreement as received by the Administrative Agent.
Neither any Agent nor any of its directors, officers, employees or
agents shall be liable as such for any action taken or omitted by any of them
except for its or his own gross negligence or wilful misconduct, or be
responsible for any statement, warranty or representation herein or the contents
of any document delivered in connection herewith, or be required to ascertain or
to make any inquiry concerning the performance or observance by any Borrower of
any of the terms, conditions, covenants or agreements contained in this
Agreement. The Agents shall not be responsible to the Lenders for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement or other instruments or agreements. The Administrative Agent shall in
all cases be fully protected in acting, or refraining from acting, in accordance
with written instructions signed by the Required Lenders (or, when expressly
required hereby, all the Lenders) and, except as otherwise specifically provided
herein, such instructions and any action or inaction pursuant thereto shall be
binding on all the Lenders and the Issuing Lenders. The Administrative Agent
shall, in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper Person or Persons. Neither the
Agents nor any of their directors, officers, employees or agents shall have any
responsibility to any Borrower on account of the failure of or delay in
performance or breach by any Lender or Issuing Lender of any of its obligations
hereunder or to any Lender or Issuing Lender on account of the failure of or
delay in performance or breach by any other Agent, any other Lender or Issuing
Lender or any Borrower of any of their respective obligations hereunder or in
connection herewith. The Administrative Agent may execute any and all duties
hereunder by or through agents or employees and shall be entitled to rely upon
the advice of legal counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or suffered in good faith
by it in accordance with the advice of such counsel.
The Lenders and the Issuing Lenders hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement unless
it shall be requested in writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, the Administrative Agent may resign at any time by
notifying the Lenders, the Issuing
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Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall
have the right to appoint from the Lenders a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint from the Lenders a successor Administrative Agent which shall
be a bank with an office in New York, New York, having a combined capital and
surplus of at least $500,000,000 or an affiliate of any such bank, which
successor shall be acceptable to Infinity (such acceptance not to be
unreasonably withheld). Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor bank, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.5 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
With respect to the Loans made by them and their LC Exposure hereunder,
the Agents in their individual capacity and not as Agents shall have the same
rights and powers as any other Lender and may exercise the same as though they
were not Agents, and the Agents and their affiliates may accept deposits from,
lend money to and generally engage in any kind of business with the Borrowers or
any of their respective Subsidiaries or any Affiliate thereof as if they were
not Agents.
Each Lender and Issuing Lender agrees (i) to reimburse the
Administrative Agent in the amount of its pro rata share (based on its Total
Facility Percentage or, after the date on which the Loans shall have been paid
in full, based on its Total Facility Percentage immediately prior to such date)
of any reasonable, out-of-pocket expenses incurred for the benefit of the
Lenders or the Issuing Lenders by the Administrative Agent, including reasonable
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders or the Issuing Lenders, which shall not have been
reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold
harmless the Administrative Agent and any of its directors, officers, employees
or agents, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against it in its capacity as
Administrative Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by it under this Agreement, to the extent the same
shall not have been reimbursed by or on behalf of Infinity, provided that no
Lender or Issuing Lender shall be liable to the Administrative Agent or any such
director, officer, employee or agent for any portion of such liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent or any of its directors, officers,
employees or agents.
Each Lender and Issuing Lender acknowledges that it has, independently
and without reliance upon the Agents or any other Lender or Issuing Lender and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender and
Issuing Lender also acknowledges that it will, independently and without
reliance upon any Agent or any other Lender or Issuing Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder
or thereunder.
Neither the Documentation Agent nor either Syndication Agent nor any
managing agent shall have any duties or responsibilities hereunder in its
capacity as such.
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ARTICLE VIII.
GUARANTEE
SECTION 8.1. Guarantee. In order to induce the Administrative Agent
and the Lenders to become bound by this Agreement and to make or maintain the
Loans hereunder, and in consideration thereof, CBS hereby unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety, to the
Administrative Agent, for the ratable benefit of the Lenders, the prompt and
complete payment and performance by each Borrower when due (whether at stated
maturity, by acceleration or otherwise) of the Borrower Obligations, and CBS
further agrees to pay any and all expenses (including, without limitation, all
reasonable fees, charges and disbursements of counsel) which may be paid or
incurred by the Administrative Agent or by the Lenders in enforcing, or
obtaining advice of counsel in respect of, any of their rights under the
guarantee contained in this Article VIII. The guarantee contained in this
Article VIII, subject to Section 8.5, shall remain in full force and effect
until the Borrower Obligations are paid in full and the Commitments are
terminated, notwithstanding that from time to time prior thereto any Borrower
may be free from any Borrower Obligations.
CBS agrees that whenever, at any time, or from time to time, it shall
make any payment to the Administrative Agent or any Lender on account of its
liability under this Article VIII, it will notify the Administrative Agent and
such Lender in writing that such payment is made under the guarantee contained
in this Article VIII for such purpose. No payment or payments made by any
Borrower or any other Person or received or collected by the Administrative
Agent or any Lender from any Borrower or any other Person by virtue of any
action or proceeding or any setoff or appropriation or application, at any time
or from time to time, in reduction of or in payment of the Borrower Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of
CBS under this Article VIII which, notwithstanding any such payment or payments,
shall remain liable for the unpaid and outstanding Borrower Obligations until,
subject to Section 8.5, the Borrower Obligations are paid in full and the
Commitments are terminated.
SECTION 8.2. No Subrogation, etc. Notwithstanding any payment or
payments made by CBS hereunder, or any set-off or application of funds of CBS by
the Administrative Agent or any Lender, CBS shall not be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against any Borrower or against any collateral security or guarantee or right of
offset held by the Administrative Agent or any Lender for the payment of the
Borrower Obligations, nor shall CBS seek or be entitled to seek any
contribution, reimbursement, exoneration or indemnity from or against any
Borrower in respect of payments made by CBS hereunder, until all amounts owing
to the Administrative Agent and the Lenders by the Borrowers on account of the
Borrower Obligations are paid in full and the Commitments are terminated. So
long as the Borrower Obligations remain outstanding, if any amount shall be paid
by or on behalf of any Borrower or any other Person to CBS on account of any of
the rights waived in this Section 8.2, such amount shall be held by CBS in
trust, segregated from other funds of CBS, and shall, forthwith upon receipt by
CBS, be turned over to the Administrative Agent in the exact form received by
CBS (duly indorsed by CBS to the Administrative Agent, if required), to be
applied against the Borrower Obligations, whether matured or unmatured, in such
order as the Administrative Agent may determine.
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SECTION 8.3. Amendments, etc. with respect to the Borrower Obligations.
CBS shall remain obligated under this Article VIII notwithstanding that, without
any reservation of rights against CBS, and without notice to or further assent
by CBS, any demand for payment of or reduction in the principal amount of any of
the Borrower Obligations made by the Administrative Agent or any Lender may be
rescinded by the Administrative Agent or such Lender, and any of the Borrower
Obligations continued, and the Borrower Obligations, or the liability of any
other party upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or any
Lender, and this Agreement and any other documents executed and delivered in
connection herewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Required Lenders (or all Lenders, as the case may be)
may deem advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by the Administrative Agent or any Lender for
the payment of the Borrower Obligations may be sold, exchanged, waived,
surrendered or released. Neither the Administrative Agent nor any Lender shall
have any obligation to protect, secure, perfect or insure any lien at any time
held by it as security for the Borrower Obligations or for the guarantee
contained in this Article VIII or any property subject thereto.
SECTION 8.4. Guarantee Absolute and Unconditional. CBS waives any
and all notice of the creation, renewal, extension or accrual of any of the
Borrower Obligations and notice of or proof of reliance by the Administrative
Agent or any Lender upon the guarantee contained in this Article VIII or
acceptance of the guarantee contained in this Article VIII; the Borrower
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon the guarantee contained in this Article VIII; and all dealings between CBS
or the Borrowers, on the one hand, and the Administrative Agent and the Lenders,
on the other, shall likewise be conclusively presumed to have been had or
consummated in reliance upon the guarantee contained in this Article VIII. CBS
waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon CBS or any Borrower with respect to the Borrower
Obligations. The guarantee contained in this Article VIII shall be construed as
a continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity or enforceability of this Agreement, any of the Borrower
Obligations or any collateral security therefor or guarantee or right of offset
with respect thereto at any time or from time to time held by the Administrative
Agent or any Lender, (b) the legality under applicable requirements of law of
repayment by the relevant Borrower of any Borrower Obligations or the adoption
of any requirement of law purporting to render any Borrower Obligations null and
void, (c) any defense, setoff or counterclaim (other than a defense of payment
or performance by the applicable Borrower) which may at any time be available to
or be asserted by CBS against the Administrative Agent or any Lender, or (d) any
other circumstance whatsoever (with or without notice to or knowledge of CBS or
any Borrower) which constitutes, or might be construed to constitute, an
equitable or legal discharge of any Borrower for any Borrower Obligations, or of
CBS under the guarantee contained in this Article VIII, in bankruptcy or in any
other instance. When the Administrative Agent or any Lender is pursuing its
rights and remedies under this Article VIII against CBS, the Administrative
Agent or any Lender may, but shall be under no obligation to, pursue such rights
and remedies as it may have against any Borrower or any other Person or against
any collateral security or guarantee for the Borrower Obligations or any right
of offset with respect thereto, and any failure by the Administrative Agent or
any Lender to pursue such other rights or remedies or to collect any payments
from any Borrower or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of any Borrower or any such other Person or of any such collateral
security, guarantee or right of offset, shall not relieve CBS of any liability
under this Article VIII, and shall not impair or affect the
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rights and remedies, whether express, implied or available as a matter of law,
of the Administrative Agent and the Lenders against CBS.
SECTION 8.5. Reinstatement. The guarantee contained in this Article
VIII shall continue to be effective, or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any of the Borrower Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent
or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Borrower or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, any
Borrower or any substantial part of its property, or otherwise, all as though
such payments had not been made.
SECTION 8.6. Payments. CBS hereby agrees that any payments in respect
of the Borrower Obligations pursuant to this Article VIII will be paid to the
Administrative Agent without setoff or counterclaim in Dollars at the office of
the Administrative Agent specified in Section 9.1.
SECTION 8.7. Infinity Guarantee. Infinity hereby unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety, to the
Administrative Agent, for the ratable benefit of the Lenders, the prompt and
complete payment and performance by each Subsidiary Borrower when due (whether
at stated maturity, by acceleration or otherwise) of the Borrower Obligations,
and further agrees that all of the provisions of Sections 8.1 through 8.6, shall
apply to the guarantee by Infinity of the Subsidiary Borrowers' performance and
payment of the Subsidiary Borrower Obligations, to the same extent as the
guarantee of CBS of the Borrowers' performance and payment of the Borrower
Obligations.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. Notices. Notices and other communications provided for
herein shall be in writing (or, where permitted to be made by telephone, shall
be confirmed promptly in writing) and shall be delivered by hand or overnight
courier service, mailed or sent by telecopier as follows:
(a) if to Infinity, to it at Infinity Broadcasting
Corporation, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention
of Chief Financial Officer and Treasurer (Telecopy No. (000) 000-0000),
with a copy to General Counsel (Telecopy No. (000) 000-0000);
(b) if to CBS, to it at CBS Corporation, 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of Vice President and Treasurer
(Telecopy No. (000) 000-0000), with a copy to General Counsel (Telecopy
No. (000) 000-0000);
(c) if to the Administrative Agent, to it at 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx Xxxx (Telecopy No. (212)
648-5336);
(d) if to any Issuing Lender, to it at the address for notices
specified in the applicable Issuing Lender Agreement;
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(e) if to a Lender, to it at its address (or telecopy number)
set forth in Schedule 1.1 or in the Assignment and Acceptance pursuant
to which such Lender shall have become a party hereto; and
(f) if to a Subsidiary Borrower, to it at its address set
forth in the relevant Subsidiary Request.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service, sent by
telecopy or, if permitted by the terms hereof and if promptly confirmed in
writing, by telephone, or on the date five Business Days after dispatch by
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.1 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.1.
SECTION 9.2. Survival of Agreement. All representations and warranties
made hereunder and in any certificate delivered pursuant hereto or in connection
herewith shall be considered to have been relied upon by the Agents and the
Lenders and shall survive the execution and delivery of this Agreement and the
making of the Loans and other extensions of credit hereunder, regardless of any
investigation made by the Agents or the Lenders or on their behalf.
SECTION 9.3. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of each Borrower, each Agent and each Lender and their
respective successors and assigns, except that Infinity shall not have the right
to assign its rights or obligations hereunder or any interest herein without the
prior consent of all the Lenders.
SECTION 9.4. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party, and all covenants, promises
and agreements by or on behalf of each Borrower, CBS, either Agent or any Lender
that are contained in this Agreement shall bind and inure to the benefit of
their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment or Swingline Commitment and the Loans at the time
owing to it); provided, however, that (i) except in the case of an assignment to
a Lender or an affiliate of such Lender (other than if at the time of such
assignment, such Lender or affiliate would be entitled to require any Borrower
to pay greater amounts under Section 2.20(a) than if no such assignment had
occurred, in which case such assignment shall be subject to the consent
requirement of this clause (i)), Infinity and the Administrative Agent must give
their prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) (x) except in the case of assignments of
Competitive Loans or assignments to any Person that is a Lender prior to giving
effect to such assignment, the amount of the aggregate Commitments and/or Loans
of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $12,500,000 and (y) the
amount of the aggregate Commitments and/or Loans retained by any assigning
Lender (determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent) shall not be less than
$12,500,000, unless (in the case of clause (x) or (y) above) the assigning
Lender's Commitment and Loans (other than any
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Competitive Loans) are being reduced to $0 pursuant to such assignment, (iii)
the assignor and assignee shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, together with a processing and recordation fee of
$3,500 and (iv) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to Section 9.4(e), from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five Business Days after the execution thereof (or any lesser period to
which the Administrative Agent and Infinity may agree), (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto (but shall continue to be entitled to the benefits of Sections 2.15,
2.16, 2.20 and 9.5, as well as to any Fees accrued for its account hereunder and
not yet paid)). Notwithstanding the foregoing, any Lender or Issuing Lender
assigning its rights and obligations under this Agreement may maintain any
Competitive Loans or Letters of Credit made or issued by it outstanding at such
time, and in such case shall retain its rights hereunder in respect of any Loans
or Letters of Credit so maintained until such Loans or Letters of Credit have
been repaid or terminated in accordance with this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim, (ii)
except as set forth in clause (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other instrument or document furnished pursuant hereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other instrument or document furnished pursuant hereto
or the financial condition of Infinity or any of its Subsidiaries or the
performance or observance by Infinity or any of its Subsidiaries of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the most recent financial statements delivered pursuant to Sections 3.2 and 5.1
and such other documents and information as it has deemed appropriate to make it
own credit analysis and decision to enter into such Assignment and Acceptance;
(v) such assignee will independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Agent or Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as agent of each
Borrower, shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive in the absence of
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manifest error and each Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by any Borrower and any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of Infinity and the
Administrative Agent to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to Infinity.
(f) Each Lender may without the consent of any Borrower or the Agents
sell participations to one or more banks, other financial institutions or other
entities (provided that any such other entity is a not a competitor of Infinity
or any Affiliate of Infinity) all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitments and the
Loans owing to it); provided, however, that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(ii) the participating banks or other entities shall be entitled to the benefit
of the cost protection provisions contained in Sections 2.15, 2.16 and 2.20 to
the same extent as if they were Lenders (provided that additional amounts
payable to any Lender pursuant to Section 2.20 shall be determined as if such
Lender had not sold any such participations) and (iv) the Borrowers, the Agents
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of each Borrower relating to the Loans and the Letters of Credit and
to approve any amendment, modification or waiver of any provision of this
Agreement (other than amendments, modifications or waivers decreasing any fees
payable hereunder or the amount of principal of or the rate at which interest is
payable on the Loans or LC Disbursements, extending any scheduled principal
payment date or date fixed for the payment of interest on the Loans or LC
Disbursements or of LC Fees or Commitment Fees, increasing the amount of or
extending the Commitments or releasing the guarantee contained in Article VIII,
in each case to the extent the relevant participant is directly affected
thereby).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.4, disclose to the assignee or participant or proposed assignee or participant
any information relating to any Borrower furnished to such Lender by or on
behalf of such Borrower; provided that, prior to any such disclosure of
information designated by such Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute a Confidentiality
Agreement whereby such assignee or participant shall agree (subject to the
exceptions set forth therein) to preserve the confidentiality of such
confidential information. A copy of each such Confidentiality Agreement executed
by an assignee shall be promptly furnished to Infinity. It is understood that
confidential information relating to the Borrowers would not ordinarily be
provided in connection with assignments or participations of Competitive Loans.
(h) Notwithstanding the limitations set forth in paragraph (b) above,
(i) any Lender may at any time assign or pledge all or any portion of its rights
under this Agreement to a Federal Reserve Bank and (ii) any Lender which is a
"fund" may at any time assign or pledge all or any portion of its rights under
this Agreement to secure such Lender's indebtedness, in each case without the
prior written consent of any Borrower or the Administrative Agent; provided that
each such assignment shall be made in accordance with applicable law and no such
assignment shall release a Lender from any of its
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obligations hereunder. In order to facilitate any such assignment, each Borrower
shall, at the request of the assigning Lender, duly execute and deliver to the
assigning Lender a registered promissory note or notes evidencing the Loans made
to such Borrower by the assigning Lender hereunder.
(i) Notwithstanding anything to the contrary contained herein, any Bank
(a "Granting Bank") may grant to a special purpose funding vehicle (a "SPC"),
identified as such in writing from time to time by the Granting Bank to the
Administrative Agent and the Borrower, the option to provide to the Borrower all
or any part of any Loan that such Granting Bank would otherwise be obligated to
make to the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan, and (ii) if an
SPC elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Bank shall be obligated to make such Loan
pursuant to the terms hereof. The making of an Loan by an SPC hereunder shall
utilize the Commitment of the Granting Bank to the same extent, and as if, such
Loan were made by such Granting Bank. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Bank). In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against, or
join any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section, any SPC may (i) with notice
to, but without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to the Granting Bank or to any
financial institutions (consented to by the Borrower and Administrative Agent )
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC. This section may not be amended without the
written consent of any SPC which has been identified as such by the Granting
Bank to the Administrative Agent and the Borrower and which then holds any Loan
pursuant to this paragraph (i).
(j) Neither CBS nor Infinity shall assign or delegate any of its rights
or duties hereunder without the prior consent of all the Lenders.
SECTION 9.5. Expenses; Indemnity. (a) Infinity agrees to pay all
reasonable out-of-pocket expenses incurred by the Agents in connection with the
preparation, negotiation, execution and delivery of this Agreement or in
connection with any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions hereby contemplated shall be
consummated) or incurred by any Agent, any Lender or any Issuing Lender in
connection with the enforcement or protection of the rights of the Agents, the
Lenders or the Issuing Lenders under this Agreement or in connection with the
Loans made or the Letters of Credit issued hereunder, including, without
limitation, the reasonable fees, charges and disbursements of Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Agents, and, in connection with any such enforcement
or protection, the reasonable fees, charges and disbursements of any other
counsel for any Agent, Lender or Issuing Lender.
(b) Infinity agrees to indemnify and hold harmless each Agent, each
Lender, each Issuing Lender and each of their respective directors, officers,
employees, affiliates and agents (each, an "Indemnified Person") against, and to
reimburse each Indemnified Person, upon its demand, for, any
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losses, claims, damages, liabilities or other expenses ("Losses") to which such
Indemnified Person becomes subject insofar as such Losses arise out of or in any
way relate to or result from (i) the execution or delivery of this Agreement,
any Letter of Credit or any agreement or instrument contemplated hereby (and any
amendment hereto or thereto), the performance by the parties hereto or thereto
of their respective obligations hereunder or thereunder or the consummation of
the transactions contemplated hereby or thereby or (ii) the use (or proposed
use) of the proceeds of the Loans or other extensions of credit hereunder,
including, without limitation, Losses consisting of reasonable legal or other
expenses incurred in connection with investigating, defending or participating
in any legal proceeding relating to any of the foregoing (whether or not such
Indemnified Person is a party thereto); provided that the foregoing will not
apply to any Losses to the extent they are found by a final decision of a court
of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnified Person.
(c) The provisions of this Section 9.5 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf of any
Agent or Lender. All amounts under this Section 9.5 shall be payable on written
demand therefor.
SECTION 9.6. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Agent and each Lender is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Agent or Lender to or for the credit or the account of any Borrower
against any of and all the obligations of such Borrower now or hereafter
existing under this Agreement or the Administrative Agent Fee Letter held by
such Agent or Lender which shall be due and payable. The rights of each Agent
and each Lender under this Section 9.6 are in addition to other rights and
remedies (including other rights of setoff) which such Agent or Lender may have.
SECTION 9.7. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS
AND PRINCIPLES OF SUCH STATE.
SECTION 9.8. Waivers; Amendment. (a) No failure or delay of any Agent,
any Issuing Lender or any Lender in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the Agents,
the Issuing Lenders and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies which they would otherwise have. No waiver
of any provision of this Agreement or consent to any departure by any Borrower
from any such provision shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Borrower in any case shall entitle any Borrower to any
other or further notice or demand in similar or other circumstances.
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(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement in writing entered into by
the Borrowers, CBS and the Required Lenders; provided, however, that no such
agreement shall (i) reduce the amount or extend the scheduled date of maturity
of any Loan or of any installment thereof, or reduce the stated amount of any LC
Disbursement, interest or fee payable hereunder or extend the scheduled date of
any payment thereof or increase the amount or extend the expiration date of any
Commitment of any Lender, in each case without the prior written consent of each
Lender directly affected thereby; (ii) amend, modify or waive any provision of
this Section 9.8(b), or reduce the percentage specified in the definition of
"Required Lenders", release the guarantee contained in Article VIII or consent
to the assignment or transfer by CBS or Infinity of any of its rights and
obligations under this Agreement, in each case without the prior written consent
of all the Lenders; or (iii) amend, modify or waive any provision of Article VII
without the prior written consent of each Agent affected thereby; provided,
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent, the Swingline Lenders or the
Issuing Lenders hereunder in such capacity without the prior written consent of
the Administrative Agent, each Swingline Lender directly affected thereby or
each Issuing Lender directly affected thereby, as the case may be.
SECTION 9.9. Entire Agreement. This Agreement (together with the
Issuing Lender Agreements, the Subsidiary Borrower Designations and the
Subsidiary Borrower Requests) constitutes the entire contract between the
parties relative to the subject matter hereof. Any previous agreement among the
parties with respect to the subject matter hereof is superseded by this
Agreement. Nothing in this Agreement, expressed or implied, is intended to
confer upon any party other than the parties hereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.10.
SECTION 9.11. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 9.12. Counterparts. This Agreement may be executed in two or
more counterparts, each of which constitute an original but all of which when
taken together shall constitute but one contract, and shall become effective as
provided in Section 9.3.
SECTION 9.13. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
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SECTION 9.14. Jurisdiction; Consent to Service of Process. (a) Each
Borrower hereby irrevocably and unconditionally submits, for itself and its
Property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State court or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Each Subsidiary Borrower designates and directs Infinity at its offices at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its agent to receive service of
any and all process and documents on its behalf in any legal action or
proceeding referred to in this Section 9.14 in the State of New York and agrees
that service upon such agent shall constitute valid and effective service upon
such Subsidiary Borrower and that failure of Infinity to give any notice of such
service to any Subsidiary Borrower shall not affect or impair in any way the
validity of such service or of any judgment rendered in any action or proceeding
based thereon. Nothing in this Agreement shall affect any right that any Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against any Borrower or its Properties in the courts of any
jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.1. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.15. Confidentiality. (a) Each Lender agrees to keep
confidential and not to disclose (and to cause its affiliates, officers,
directors, employees, agents and representatives to keep confidential and not to
disclose) and, at the request of Infinity (except as provided below or if such
Lender is required to retain any Confidential Information (as defined below)
pursuant to customary internal or banking practices, bank regulations or
applicable law), promptly to return to Infinity or destroy the Confidential
Information and all copies thereof, extracts therefrom and analyses or other
materials based thereon, except that such Lender shall be permitted to disclose
Confidential Information (i) to such of its officers, directors, employees,
agents, affiliates and representatives as need to know such Confidential
Information in connection with such Lender's participation in this Agreement,
each of whom shall be informed by such Lender of the confidential nature of the
Confidential Information and shall agree to be bound by the terms of this
Section 9.15; (ii) to the extent required by applicable laws and regulations or
by any subpoena or similar legal process or requested by any Governmental
Authority or agency having jurisdiction over such Lender; provided, however,
that, except in the case of disclosure to bank regulators or examiners in
accordance with customary banking practices, written notice of each instance in
which Confidential Information is required or requested to be disclosed shall be
furnished to Infinity not less than 30 days prior to the expected date of such
disclosure or, if 30 days' notice is not practicable under the circumstances, as
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promptly as practicable under the circumstances; (iii) to the extent such
Confidential Information (A) is or becomes publicly available other than as a
result of a breach of this Agreement, (B) becomes available to such Lender on a
non-confidential basis from a source other than a party to this Agreement or any
other party known to such Lender to be bound by an agreement containing a
provision similar to this Section 9.15 or (C) was available to such Lender on a
non-confidential basis prior to this disclosure to such Lender by a party to
this Agreement or any other party known to such Lender to be bound by an
agreement containing a provision similar to this Section 9.15; (iv) as permitted
by Section 9.4(g); or (v) to the extent Infinity shall have consented to such
disclosure in writing. As used in this Section 9.15, "Confidential Information"
shall mean any materials, documents or information furnished by or on behalf of
any Borrower in connection with this Agreement designated by or on behalf of
such Borrower as confidential.
(b) Each Lender (i) agrees that, except to the extent the conditions
referred to in subclause (A), (B) or (C) of clause (iii) of paragraph (a) above
have been met and as provided in paragraph (c) below, (A) it will use the
Confidential Information only in connection with its participation in this
Agreement and (B) it will not use the Confidential Information in connection
with any other matter or in a manner prohibited by any law, including, without
limitation, the securities laws of the United States and (ii) understands that
breach of this Section 9.15 might seriously prejudice the interest of the
Borrowers and that the Borrowers are entitled to equitable relief, including an
injunction, in the event of such breach.
(c) Notwithstanding anything to the contrary contained in this Section
9.15, each Agent and each Lender shall be entitled to retain all Confidential
Information for so long as it remains an Agent or a Lender to use solely for the
purposes of servicing the credit and protecting its rights hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
INFINITY BROADCASTING CORPORATION
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Title: Executive Vice President and Chief
Financial Officier and Treasurer
INFINITY BROADCASTING CORPORATION OF BOSTON
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Title: Executive Vice President and Chief
Financial Officier and Treasurer
INFINITY BROADCASTING CORPORATION OF NEW YORK
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Title: Executive Vice President and Chief
Financial Officier and Treasurer
HEMISPHERE BROADCASTING CORPORATION
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Title: Executive Vice President and Chief
Financial Officier and Treasurer
TRANSPORTATION DISPLAYS, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Title: Executive Vice President and Chief
Financial Officier and Treasurer
CBS CORPORATION,
as guarantor pursuant to Article 8
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Title: Executive Vice President and Chief
Financial Officer
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Administrative Agent
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Title: Associate
