================================================================================
$6,400,000,000
AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of
March 26, 1997,
among
VIACOM INC.,
as Borrower,
THE BANKS NAMED HEREIN,
as Banks,
THE BANK OF NEW YORK,
CITIBANK, N.A.,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK,
BANK OF AMERICA NT&SA,
and
THE CHASE MANHATTAN BANK
as Managing Agents,
THE BANK OF NEW YORK,
as the Documentation Agent,
CITIBANK, N.A.,
as the Administrative Agent,
▇▇ ▇▇▇▇▇▇ SECURITIES INC.,
and
BANK OF AMERICA NT&SA,
as the Syndication Agents,
THE BANKS IDENTIFIED AS AGENTS
ON THE SIGNATURE PAGES HEREOF,
as Agents,
and
THE BANKS IDENTIFIED AS CO-AGENTS
ON THE SIGNATURE PAGES HEREOF,
as Co-Agents
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms..................................................2
1.2. Computation of Time Periods...................................18
1.3. Accounting Terms..............................................18
ARTICLE II
AMOUNT AND TERMS OF THE REVOLVING LOANS
2.1. The Revolving Loans...........................................19
2.2. Making the Revolving Loans....................................20
2.3. Termination/Reduction of the Revolving Loan Commitments.......21
2.4. Repayment of the Revolving Loan...............................23
2.5. Optional Prepayments of the Revolving Loan....................23
2.6. Mandatory Prepayment..........................................23
ARTICLE III
THE TERM LOANS
3.1. The Term Loans................................................23
3.2. Making the Term Loans.........................................24
3.3. Repayment of Term Loans.......................................25
3.4. Optional Prepayments of the Term Loans........................26
ARTICLE IV
CONVERSION, INTEREST, PAYMENTS, FEES, ETC.
4.1. Conversion/Continuation Option................................27
4.2. Interest......................................................27
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4.3. Interest Rate Determination and Protection....................28
4.4. Fees..........................................................29
4.5. Increased Costs...............................................30
4.6. Illegality....................................................31
4.7. Capital Adequacy..............................................32
4.8. Payments and Computations.....................................33
4.9. Sharing of Payments, Etc......................................34
4.10. Replacement Banks............................................34
ARTICLE V
CONDITIONS OF LENDING
5.1. Conditions Precedent to the Effectiveness of this Agreement...34
5.2. Additional Conditions Precedent to the Making of the Initial
Loans......................................................35
5.3. Conditions Precedent to the Making of Each Loan...............36
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Corporate Existence; Compliance with Law......................36
6.2. Corporate Power; Authorization; Enforceable Obligations.......37
6.3. Taxes.........................................................37
6.4. Financial Information.........................................38
6.5. Litigation....................................................38
6.6. Margin Regulations............................................39
6.7. ERISA.........................................................39
6.8. No Defaults...................................................39
6.9. Investment Company Act........................................40
6.10. Insurance....................................................40
6.11. Environmental Protection.....................................40
6.12. Title and Liens..............................................40
6.13. Trademarks, Copyrights, Etc..................................40
6.14. FCC Licenses.................................................40
6.15. Disclosure...................................................41
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ARTICLE VII
FINANCIAL COVENANTS
7.1. Total Leverage Ratio..........................................41
7.2. Ratio of EBIDT to Trailing Total Cash Interest and Preferred
Dividends..................................................42
7.3. Minimum Net Worth.............................................42
ARTICLE VIII
AFFIRMATIVE COVENANTS
8.1. Compliance with Laws, Etc.....................................42
8.2. Payment of Taxes, Etc.........................................42
8.3. Maintenance of Insurance......................................42
8.4. Preservation of Corporate Existence, Etc......................43
8.5. Books and Access..............................................43
8.6. Maintenance of Properties, Etc................................43
8.7. Application of Proceeds.......................................43
8.8. Financial Statements..........................................43
8.9. Reporting Requirements........................................45
ARTICLE IX
NEGATIVE COVENANTS
9.1. Liens, Etc....................................................47
9.2. Mergers.......................................................47
9.3. Substantial Asset Sale........................................48
9.4. Transactions with Affiliates..................................48
9.5. Margin Stock..................................................48
9.6. Subsidiary Indebtedness.......................................48
9.7. Other Restrictions on Indebtedness............................48
ARTICLE X
EVENTS OF DEFAULT
10.1. Events of Default............................................49
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ARTICLE XI
THE MANAGING AGENTS AND THE FACILITY AGENTS
11.1. Authorization and Action.....................................51
11.2. Managing Agents' and Facility Agents' Reliance, Etc..........52
11.3. The Bank of New York, Citibank, N.A., ▇▇▇▇▇▇ Guaranty Trust
Company of New York, Bank of America NT&SA, The Chase
Manhattan Bank and their Affiliates.......................52
11.4. Bank Credit Decision.........................................53
11.5. Determinations Under Sections 5.1, 5.2 and 5.3...............53
11.6. Indemnification..............................................53
11.7. Successor Facility Agents....................................54
ARTICLE XII
MISCELLANEOUS
12.1. Amendments, Etc..............................................55
12.2. Notices, Etc.................................................55
12.3. No Waiver; Remedies..........................................56
12.4. Costs; Expenses; Indemnities.................................56
12.5. Right of Set-Off.............................................57
12.6. Binding Effect...............................................58
12.7. Assignments and Participations; Additional Banks.............58
12.8. GOVERNING LAW; SEVERABILITY..................................60
12.9. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.............60
12.10. Confidentiality.............................................61
12.11. Section Titles..............................................61
12.12. Execution in Counterparts...................................61
Schedules
Schedule I - Lending Offices
Schedule II - Commitments
Schedule 1.1 - Guarantees in Effect on the Date
of this Agreement
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Exhibits
Exhibit A - Form of Notice of Borrowing
Exhibit B - Form of VII Guarantee
Exhibit C - Form of Notice of Conversion or Continuation
Exhibit D - Form of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Opinion
Exhibit E - Form of Notice of Assignment and Acceptance
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 26, 1997,
which amends and restates the Credit Agreement, dated as of July 1, 1994, as
amended (the "Existing Agreement", as amended and restated hereby, this
"Agreement") among VIACOM INC., a Delaware corporation (the "Borrower"), the
Bank parties hereto from time to time, THE BANK OF NEW YORK, as a Managing Agent
and as the Documentation Agent, CITIBANK, N.A., as a Managing Agent and as the
Administrative Agent, ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as a Managing
Agent, THE BANK OF AMERICA NT&SA, as a Managing Agent and a Syndication Agent,
THE CHASE MANHATTAN BANK, as a Managing Agent, ▇▇ ▇▇▇▇▇▇ SECURITIES INC., as a
Syndication Agent, the Banks identified as Agents on the signature pages hereof,
as Agents, and the Banks identified as Co-Agents on the signature pages hereof,
as Co-Agents.
W I T N E S S E T H:
WHEREAS, the Borrower has previously entered into the $1,800,000,000
Credit Facility, dated as of September 29, 1994, as amended (the "$1.8 billion
Credit Facility") with the banks, managing agents, documentation agent,
administrative agent, syndication agents and agents identified therein;
WHEREAS, the Borrower has also previously entered into the
Subsidiary Facility (as hereinafter defined);
WHEREAS, the Borrower has requested that the Banks amend and restate
the Existing Agreement to provide for, among other things, the incorporation,
restatement and refinancing of certain existing indebtedness of the Borrower and
certain of its Subsidiaries under the $1.8 billion Credit Facility and the
Subsidiary Facility, for payment of related transaction costs, fees and
expenses, to provide support for certain commercial paper and competitive bid
facilities of the Borrower and for general corporate purposes and the Banks are
willing to amend and restate the Existing Agreement on the terms of this
Agreement and to make funds available for such purposes, but only upon the terms
and subject to the conditions contained herein; and
WHEREAS, simultaneously herewith, the Banks, the Facility Agents (as
hereinafter defined), the Managing Agents, the Agents and the Co-Agents are
entering into the Subsidiary Facility (as hereinafter defined), pursuant to
which the Banks will provide senior debt financing to a subsidiary of the
Borrower;
NOW, THEREFORE, in consideration of the premises and the covenants
and agreements contained herein, the parties hereto hereby agree that the
Existing
Agreement and the $1.8 billion Credit Facility are hereby consolidated, amended
and restated in their entirety as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms. As used in this Agreement, the following terms
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Administrative Agent" means Citibank, N.A., in its capacity as the
Administrative Agent, or any successor in such capacity.
"Affiliate" means, as to any Person, any Subsidiary of such Person
and any other Person which, directly or indirectly, controls, is controlled by
or is under common control with such Person. For the purposes of this
definition, "control" means the possession of the power to direct or cause the
direction of management and policies of any Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agents" means each of the Banks identified as Agents on the
signature pages hereof.
"Agreement" means this Amended and Restated Credit Agreement, as
modified, amended or supplemented from time to time.
"APB 16 and 17" means Accounting Principles Board Opinions Nos. 16
and 17 as in effect at the time that any addition or adjustment required
thereunder is to be made to the financial statements of a Person.
"Applicable Eurodollar Rate Margin" shall mean on any date the
percentage set forth below opposite the Credit Rating applicable to the Borrower
on such date:
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CREDIT RATING MARGIN
------------- ------
A-/A3 or better 0.275%
BBB+/Baa1 0.300%
BBB/Baa2 0.375%
BBB-/Baa3 0.425%
BB+/Ba1 0.600%
BB/Ba2 0.700%
BB-/Ba3 or lower 1.000%
; provided, however, that if the ratings assigned by S&P and ▇▇▇▇▇'▇ shall
differ, the Credit Rating shall be the rating which is the higher rating. Any
change in the Credit Rating of the Borrower shall be effective to adjust the
applicable Eurodollar Rate Margin as of the date such change is announced by the
applicable Rating Agency.
"Applicable Lending Office" means, with respect to each Bank, its
Domestic Lending Office in the case of a Base Rate Loan, and its Eurodollar
Lending Office in the case of a Eurodollar Rate Loan.
"Arranger" means each of The Bank of New York, Citicorp Securities,
Inc., ▇▇ ▇▇▇▇▇▇ Securities Inc., BancAmerica Securities, Inc. and Chase
Securities Inc.
"Banks" means the lenders listed on the signature pages hereof, and
such other lenders as may become parties hereto from time to time pursuant to
Section 12.7.
"Base Rate" means, for any day, a fluctuating interest rate per
annum as shall be in effect for such day, which rate per annum shall be equal at
all times to the higher of
(a) the rate of interest announced publicly by the Administrative
Agent in New York, New York as the Administrative Agent's base rate in
effect for such day; or
(b) the Federal Funds Rate for such day plus 1/2 of one percent per
annum;
provided, however, that if the higher of the Credit Ratings assigned by S&P and
▇▇▇▇▇'▇ to the Borrower shall be BB-/Ba3 or lower, (or, if such Credit Ratings
differ by more than one level, the rating that is one rating level immediately
above the lower of such ratings, shall be BB-/Ba3 or lower) then the Base Rate
shall be equal at all times to the sum of (x) the higher of the foregoing rates
plus (y) 1/2 of one percent per annum.
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"Base Rate Loan" means any Loan or portion thereof that bears
interest with reference to the Base Rate.
"Borrower" has the meaning specified in the recitals hereof.
"Borrowing" means a Revolving Loan Borrowing or a Term Loan
Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable Business
Day relates to a Eurodollar Rate Loan, a day on which dealings are also carried
on in Dollars in the London interbank market.
"Capital Market Transaction" means the issuance or incurrence of any
Indebtedness for borrowed money (other than borrowings hereunder) or the
issuance of any Equity or other securities, excluding Commercial Paper, in each
case whether by means of any public offering, private placement or incurrence of
additional bank debt.
"Capitalized Lease" means, as applied to any Person, any lease of
property by such Person as lessee which should be capitalized on a balance sheet
of such Person prepared in accordance with GAAP, other than leases of satellite
transponders.
"Cash Equivalents" means (i) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed or insured by
the United States government or any agency thereof, (ii) certificates of
deposit, time deposits, bankers' acceptances and repurchase agreements of any
commercial bank rated at least A-3 by ▇▇▇▇▇'▇, (iii) negotiable Eurodollar
certificates of deposit and time deposits issued by a London affiliate of a U.S.
commercial bank or Canadian bank qualified under the preceding clause (ii) if
such affiliate's long-term debt is rated A-3 or better by ▇▇▇▇▇'▇ and (iv)
commercial paper of an issuer rated at least A-1+ by S&P or P-1 by ▇▇▇▇▇'▇, or
carrying an equivalent rating by a nationally recognized rating agency, if both
of the two named rating agencies cease publishing ratings of investments.
"Co-Agents" means each of the Banks identified as Co-Agents on the
signature pages hereof.
"Code" means the Internal Revenue Code of 1986 (or any successor
legislation thereto), as amended from time to time.
"Commercial Paper" means any unsecured promissory note of the
Borrower or Viacom International with a maturity at the time of issuance not
exceeding
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nine months, exclusive of days of grace, issued by the Borrower or Viacom
International pursuant to a commercial paper program of either.
"Commitment" means, as to any Bank, such Bank's aggregate Revolving
Loan Commitment and/or Term Loan Commitment and "Commitments" means, as to all
of the Banks, the aggregate of the Revolving Loan Commitments and Term Loan
Commitments of all the Banks.
"Commitment Fee" has the meaning specified in Section 4.4(a).
"Commitment Termination Date" means the earlier of (i) July 1, 2002
and (ii) the date of the earlier termination in whole of all of the Commitments
pursuant to the terms hereof, including pursuant to Section 10.1.
"Contaminant" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum derived
substance or waste, or any constituent of such substance or waste, including any
substance regulated under any Environmental Law.
"Credit Rating" means the most recent rating of the long-term senior
unsecured debt of the Borrower announced by ▇▇▇▇▇'▇ or S&P or, in the event that
either or both cease the issuance of debt ratings generally, such other rating
agency or rating agencies agreed to by the Majority Banks.
"Default" means any event which with the passing of time or the
giving of notice or both would become an Event of Default.
"Documentation Agent" means The Bank of New York, in its capacity as
the Documentation Agent, or any successor in such capacity.
"Dollars" and the sign "$" each mean the lawful money of the United
States of America.
"Domestic Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Domestic Lending Office" opposite its name
on Schedule I or such other office of such Bank as such Bank may from time to
time specify to the Borrower and the Administrative Agent.
"Earnings from Operations" means, at any time, for the Borrower and
its Subsidiaries, revenues plus equity in earnings of affiliated companies, less
(i) operating expenses, (ii) selling expenses, (iii) general and administrative
expenses and (iv) depreciation and amortization expenses.
5
"EBIDT" means, at any time, the Earnings from Operations of the
Borrower and its Subsidiaries on a consolidated basis as set forth in the
statement of operations of the Borrower and its Subsidiaries for the immediately
preceding four Fiscal Quarters for which financial statements have been
delivered to the Banks pursuant to Section 8.8 of this Agreement (adjusted to
account for material dispositions during such four Fiscal Quarters), plus (to
the extent previously deducted) (a) the sum of the following expenses of the
Borrower and its Subsidiaries for such period: (i) depreciation expense; (ii)
amortization expense (including all amortization expenses recognized in
accordance with APB 16 and 17 but excluding (A) all other amortization of
programming, production and pre-publication costs and (B) amortization of
videocassettes); (iii) expenses accrued under the Incentive Plans for such
period; (iv) in the event that, during such period, the Borrower or any of its
Subsidiaries acquires all or substantially all of the assets or Equity of any
other Person or any Equity in any other Person that is reported on an equity
basis, the EBIDT of such Person, as determined in accordance with the terms of
this definition, shall be included in the EBIDT of the Borrower for all Fiscal
Quarters during such period; and (v) all other non-cash charges; less (b) the
proportional EBIDT of the interests held by any other Person in entities fully
consolidated with the Borrower and its Subsidiaries, as determined in accordance
with the terms of this definition. In calculating EBIDT, any losses of UPN
Network prior to December 31, 1996 shall be disregarded. In addition, for the
purposes of Section 7.2 only, EBIDT shall be calculated on an actual historical
basis without taking into account acquisitions or dispositions during any
relevant calculation period.
"Environmental Law" means the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. ss. 9601 et seq.), the Hazardous
Material Transportation Act (49 U.S.C. ss. 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. ss. 1251 et seq.), the Clean Air Act (42 U.S.C.
ss. 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. ss. 2601 et
seq.), and the Occupational Safety and Health Act (29 U.S.C. ss. 651 et seq.),
in each case as amended or supplemented from time to time, and any analogous
future federal or present or future state or local statutes, including, without
limitation, transfer of ownership notification statutes such as the New Jersey
Environmental Cleanup Responsibility Act (N.J. Stat. ▇▇▇. ss. 13:1K-6 et seq.)
and the Connecticut Industrial Transfer Law of 1985 (Conn. Gen. Stat. ss.
22a-134 et seq.) and the regulations promulgated pursuant thereto.
"Environmental Liabilities and Costs" means, as to any Person, all
liabilities, obligations, responsibilities, Remedial Actions, losses, damages,
punitive damages, consequential damages, treble damages, costs and expenses
(including, without limitation, all reasonable fees, disbursements and expenses
of counsel, expert and consulting fees, and costs of investigation and
feasibility studies), fines, penalties, sanctions and interest incurred as a
result of any claim or demand, by any Person,
6
whether based in contract, tort, implied or express warranty, strict liability,
any criminal or civil statute, including any Environmental Law, Permit, order or
agreement with any Governmental Authority or other Person, arising from
environmental, health or safety conditions, or the Release or threatened Release
of a Contaminant into the environment, resulting from the past, present or
future operations of such Person or its Subsidiaries.
"Environmental Lien" means any Lien in favor of any Governmental
Authority for Environmental Liabilities and Costs.
"Equity" means all shares, options, equity interests, general or
limited partnership interests, joint venture interests or participations or
other equivalents (regardless of how designated) of or in a corporation,
partnership or other entity, whether voting or non-voting, and including,
without limitation, common stock, preferred stock, purchase rights, warrants or
options for any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974
(or any successor legislation thereto) and the rules and regulations promulgated
thereunder, as amended from time to time.
"ERISA Affiliate" shall mean a corporation, partnership or other
entity which is considered one employer with the Borrower under Section 4001 of
ERISA or Section 414 of the Code.
"ERISA Event" means (i) a Reportable Event with respect to a Title
IV Plan; (ii) the withdrawal of the Borrower, any of its Subsidiaries or any
ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (iii) the filing of a notice of intent to terminate a Title
IV Plan or the treatment of a plan amendment as a termination under Section 4041
of ERISA; or (iv) the institution of proceedings to terminate a Title IV Plan or
Multiemployer Plan by the PBGC.
"Eurocurrency Liabilities" has the meaning specified in Regulation
D.
"Eurodollar Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Eurodollar Lending Office" opposite its
name on Schedule I (or, if no such office is specified, its Domestic Lending
Office) or such other office of such Bank as such Bank may from time to time
specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period, the rate of
interest per annum determined by the Administrative Agent to be the offered rate
per annum at which deposits in Dollars appears on the Telerate Page 3750 (or any
successor page) as of 11:00
7
A.M. (London time), or in the event such offered rate is not available from the
Telerate Page, the average (rounded upward to the nearest whole multiple of 1/16
of 1% per annum, if such average is not such a multiple) of the rates offered by
the principal office of each of the Reference Banks in London, England to prime
banks in the London interbank market at 11:00 A.M. (London time), two Business
Days before the first day of such Interest Period for deposit in dollars in an
amount substantially equal to the aggregate Eurodollar Rate Loans to which such
Interest Period relates and for a period equal to such Interest Period.
"Eurodollar Rate Loan" means any Loan or portion thereof that bears
interest at a rate determined with reference to the Eurodollar Rate.
"Eurodollar Rate Reserve Percentage" means, for any Bank for any
Interest Period, the reserve percentage applicable during such Interest Period
(or if more than one such percentage shall be so applicable, the daily average
of such percentages for those days in such Interest Period during which any such
percentage shall be so applicable) under Regulation D for determining the actual
reserve requirement incurred by such Bank (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities having
a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 10.1.
"Facility Agents" means each of the Administrative Agent, the
Documentation Agent and the Syndication Agents.
"FCC" means the Federal Communications Commission, or any successor
thereto.
"FCC License" means, with respect to the Borrower 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 Rate" means, for any day, a fluctuating interest rate
per annum equal for such day to 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 for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for such day on such transactions received by
the Administrative Agent from three federal funds brokers of recognized standing
selected by it.
8
"Final Judgment" has the meaning specified in Section 10.1(g).
"Fiscal Quarter" means any three month period ending March 31, June
30, September 30 or December 31 of any Fiscal Year.
"Fiscal Year" means each twelve-month period ending December 31.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time and set forth in the rules,
regulations, opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entity as may be in general use by significant segments
of the accounting profession and which are applicable to the circumstances as of
the date of determination.
"GAAS" means generally accepted auditing standards in the United
States of America as in effect from time to time and set forth in the rules,
regulations, opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entity as may be in general use by significant segments
of the accounting profession and which are applicable to the circumstances as of
the date of determination.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantor Subsidiary" means Viacom International.
"Incentive Plans" means the Borrower's Long-Term Incentive Plan and
Long-Term Management Incentive Plan.
"Indebtedness" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money (including, without
limitation, in the case of the Borrower, the obligations of the Borrower for
borrowed money under this Agreement), (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (iii) all
obligations of such Person to pay the deferred purchase price of Property or
services, except as provided below, (iv) all obligations of such Person as
lessee under Capitalized Leases, (v) all Indebtedness of others secured by a
Lien on any Property of such Person, whether or not such Indebtedness is assumed
by such Person, (vi) all Indebtedness of others directly or indirectly
guaranteed or otherwise assumed by such Person, including any obligations of
others endorsed (otherwise than for
9
collection or deposit in the ordinary course of business) or discounted or sold
with recourse by such Person, or in respect of which such Person is otherwise
directly or indirectly liable, including, without limitation any Indebtedness in
effect guaranteed by such Person through any agreement (contingent or otherwise)
to purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation,
or to maintain the solvency or any balance sheet or other financial condition of
the obligor of such obligation, provided that Indebtedness of the Borrower and
its Subsidiaries shall not include (a) guarantees in existence on the date
hereof of Indebtedness of discontinued operations, and (b) guarantees of
Indebtedness that are identified on Schedule 1.1 hereto and that arise from
commitments in existence at September 29, 1994 (in each of cases (a) and (b),
only if such guarantees are not extended by the Borrower or any of its
Subsidiaries after September 29, 1994 or, in the case of any increase in
commitments, only the amount of the increase in such existing commitments shall
be included in Indebtedness) (vii) all obligations of such Person as issuer,
customer or account party under letters of credit or bankers' acceptances that
are either drawn or that back financial obligations that would otherwise be
Indebtedness; provided, however, that in each of the foregoing clauses (i)
through (vii), Indebtedness shall not include obligations (other than under this
Agreement or the Subsidiary Facility) specifically with respect to the
production, distribution and acquisition of motion pictures or other programming
rights, talent or publishing rights.
"Indemnified Liability" has the meaning specified in Section
12.4(b).
"Indemnified Person" has the meaning specified in Section 12.4(b).
"Initial Funding Date" means the date on which the conditions set
forth in Sections 5.1, 5.2 and 5.3 are satisfied or waived and the initial Loans
are made hereunder.
"Interest Period" means, (a) in the case of Base Rate Loans, the
period commencing on the date such Loans are made or on the date of conversion
of such Loans from Eurodollar Rate Loans and ending on the last day of each
Fiscal Quarter, and (b) in the case of Eurodollar Rate Loans, (i) initially, the
period commencing on the date such Loans are made or on the date of conversion
of such Loans or portions thereof from Base Rate Loans and ending one, two,
three or six months thereafter, as selected by the Borrower in its Notice of
Borrowing or Notice of Conversion or Continuation given to the Administrative
Agent pursuant to Section 2.2, 3.2, or 4.1, as the case may be, and (ii)
thereafter, if such Loans are renewed, in whole or in part, as Eurodollar Rate
Loans pursuant to Section 4.1, the period commencing on the last day of the
immediately preceding Interest Period therefor and ending one, two, three or six
months thereafter, as selected by the Borrower in its Notice of Conversion or
Continuation given to the Administrative Agent pursuant to Section 4.1, subject,
however, to the following:
10
(i) if any Interest Period would otherwise end on a day that is not
a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless the result of such extension for any
Eurodollar Rate Loan would be to extend such Interest Period into another
calendar month, in which event such Interest Period shall end on the
immediately preceding Business Day;
(ii) any Interest Period in respect of Eurodollar Rate Loans that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of a calendar
month;
(iii) no Interest Period may extend beyond the Commitment
Termination Date;
(iv) the Borrower may not select any Interest Period in respect of
Loans in an aggregate amount less than $5,000,000; and
(v) there shall be outstanding at any one time no more than 20
Interest Periods in the aggregate.
"IRS" means the Internal Revenue Service, or any successor thereto.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement.
"Loan Documents" means, collectively, this Agreement, the Subsidiary
Facility, the VII Guarantee and the Parent Guarantee.
"Loan Parties" means each of the Borrower, the Subsidiary Borrower
and the Guarantor Subsidiary.
"Loans" means, collectively, the Revolving Loans and the Term Loans.
"Majority Banks" means, at any time, Banks having at least 51% of
the aggregate amount of (x) the Commitments and (y) the Subsidiary Commitments
under (and as defined in) the Subsidiary Facility, taken together and voting as
a single group; provided, however, that, for purposes of this definition, if the
Commitment or Subsidiary Commitment of any Bank shall have been terminated, the
then aggregate unpaid principal amount of Loans of such Bank hereunder and
Subsidiary Loans of such Bank under (and
11
as defined in) the Subsidiary Facility shall be deemed to be such Bank's
Commitment or Subsidiary Commitment, as the case may be.
"Managing Agents" means each of The Bank of New York, Citibank,
N.A., ▇▇▇▇▇▇ Guaranty Trust Company of New York, Bank of America NT&SA and
The Chase Manhattan Bank, acting in such capacity.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means a change that has resulted or would
result in a Material Adverse Effect.
"Material Adverse Effect" means a material adverse effect on the
business, financial condition, operations or Properties of the Borrower and its
Subsidiaries taken as a whole.
"Material Credit Agreement Change" means a change that has
materially adversely affected or would materially adversely affect the legality,
validity or enforceability of any payment obligation of the Borrower or Viacom
International.
"Material Subsidiary" of any Person means any "significant
subsidiary" of such Person as defined in Regulation S-X, as amended from time to
time, promulgated under the Securities Act of 1933, as amended.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower, any of its Subsidiaries or
any ERISA Affiliate is making, is obligated to make, has made or been obligated
to make, contributions on behalf of participants who are or were employed by any
of them.
"NAI" means National Amusements, Inc., a Maryland corporation.
"Net Cash Proceeds" means:
(a) in reference to asset sales, proceeds in cash as and when
received by the Borrower or any of its Subsidiaries (including cash paid
in respect of any Indebtedness received) from the sale by the Borrower or
any of its Subsidiaries to any Person (other than the Borrower or any of
its wholly owned Subsidiaries) of any asset outside of the ordinary course
of business (including, without limitation, the sale of any facility,
division, plant or other real property or interest in real property), net
of the direct costs relating to such sale, including, without
12
limitation, (i) legal, accounting and investment banking fees and sale
commissions, (ii) taxes paid or payable as a result thereof (after taking
into account any available tax credits or deductions and any tax sharing
arrangements in each case arising directly from such sale), (iii) amounts
required to be applied to the repayment of Indebtedness relating to the
asset that is the subject of such sale and not otherwise provided for by
the terms of such sale, and (iv) reasonable reserves for purchase price
adjustments; and
(b) in reference to Capital Market Transactions by any Person, the
proceeds in cash received from such Capital Market Transactions, net of
all issuance costs.
For purposes of this definition, proceeds received by any Subsidiary of the
Borrower other than a wholly owned Subsidiary shall be deemed to be Net Cash
Proceeds received by the Borrower only in an amount proportionate to the equity
ownership interest of the Borrower in the Subsidiary receiving such proceeds.
"Net Worth" means, at any time, as to the Borrower and its
Subsidiaries on a consolidated basis (determined in accordance with GAAP), the
excess of total assets over (i) total liabilities as shown on the Borrower's
then most recent consolidated balance sheet and (ii) preferred stock that is
either exchangeable into debt or is non-perpetual.
"Notice of Assignment and Acceptance" has the meaning specified in
Section 12.7(a).
"Notice of Borrowing" means a notice of the Borrower substantially
in the form of Exhibit A hereto specifying therein (i) the date of the proposed
Borrowing, (ii) the aggregate amount of such proposed Borrowing, (iii) the
amount thereof, if any, requested to be Eurodollar Rate Loans, (iv) the initial
Interest Period or Interest Periods for any such Eurodollar Rate Loans and (v)
whether such Borrowing is to be a Short-Term Loan Borrowing, a Revolving Loan
Borrowing or a Term Loan Borrowing.
"Notice of Conversion or Continuation" has the meaning specified in
Section 4.1.
"Original Funding Date" means the "Initial Funding Date," as defined
in the Existing Agreement.
"Parent Guarantee" means the guarantee by the Borrower of the
obligations of Viacom International pursuant to the Subsidiary Facility,
substantially in the form of Exhibit C to the Subsidiary Facility.
13
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Pension Plan" means an employee pension benefit plan, as defined in
Section 3(2) of ERISA (other than a Multiemployer Plan), which is not an
individual account plan, as defined in Section 3(34) of ERISA, and which the
Borrower, any of its Subsidiaries or any ERISA Affiliate now or in the future
maintains, contributes to or has an obligation to contribute to on behalf of
participants who are or were employed by any of them.
"Permit" means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or Governmental Authority.
"Plan" shall mean an employee benefit plan as defined in Section
3(3) of ERISA which is maintained or contributed to by the Borrower or an ERISA
Affiliate.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, and whether tangible or intangible, including,
without limitation, the right to use, transmit, display, license or otherwise
temporarily or permanently benefit from the possession of, control of or access
to any film, television program, trademark, trade name, copyright, service ▇▇▇▇
or any other type of intellectual or intangible property.
"Qualified Plan" means an employee pension benefit plan, as defined
in Section 3(2) of ERISA, which is intended to be tax-qualified under Section
401(a) of the Code, and which the Borrower, any of its Subsidiaries or any ERISA
Affiliate now or in the future maintains, contributes to or has an obligation to
contribute to on behalf of participants who are or were employed by any of them.
"Ratable Portion" means, with respect to any Bank, (i) with respect
to the Revolving Loans and the Term Loans, respectively, the percentage obtained
by dividing the amount of such Bank's Revolving Loan Commitment or Term Loan
Commitment, as the case may be, by the aggregate amount of all of such Revolving
Loan Commitments or Term Loan Commitments of all the Banks, respectively, and
(ii) with respect to the aggregate amount of all Commitments, the percentage
obtained by dividing the aggregate Commitment of such Bank by the aggregate
amount of all Commitments of all the Banks.
14
"Reference Banks" means The Bank of New York, Citibank, N.A., The
Chase Manhattan Bank, ▇▇▇▇▇▇ Guaranty Trust Company of New York and Bank of
America NT&SA.
"Register" has the meaning specified in Section 12.7(g) hereof.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System (or any successor thereto), as in effect from time to
time, or any successor thereto.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System (or any successor thereto), as in effect from time to
time, or any successor thereto.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System (or any successor thereto), as in effect from time to
time, or any successor thereto.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System (or any successor thereto), as in effect from time to
time, or any successor thereto.
"Release" means, as to any Person, any release, spill, emission,
leaking, pumping, injection, deposit, disposal, discharge, disbursal, leaching
or migration into the indoor or outdoor environment or into or out of any
property owned by such Person, including the movement of Contaminants through or
in the air, soil, surface water, ground water or property.
"Remedial Action" means all actions required to (i) clean up,
remove, treat or in any other way address Contaminants in the indoor or outdoor
environment, (ii) prevent the Release or threat of Release or minimize the
further Release of Contaminants so they do not migrate or endanger or threaten
to endanger public health or welfare or the indoor or outdoor environment, or
(iii) perform pre-remedial studies and investigations and post-remedial
monitoring and care.
"Reportable Event" means any of the events described in Section
4043(b)(1), (2), (3), (5), (6), (8) or (9) of ERISA.
"Requirements of Law" means all federal, state and local laws,
rules, regulations, orders, decrees or other determinations of an arbitrator,
court or other Governmental Authority, including the requirements of ERISA and
Environmental Law.
15
"Responsible Financial Officer" means the chief financial officer,
treasurer, assistant treasurer, controller, secretary, assistant secretary or
other officer of the Borrower listed in the certificate delivered to the
Managing Agents pursuant to Section 5.1(c) or otherwise notified to the
Administrative Agent as being authorized to execute documents and certificates
and otherwise act on behalf of the Borrower in connection with financial matters
arising under this Agreement or any other Loan Document.
"Responsible Officer" of any Person means any of the officers of
such Person listed in the certificate delivered to the Managing Agents pursuant
to Section 5.1(c) or otherwise notified to the Administrative Agent as being
authorized to execute and deliver documents and certificates and otherwise act
on behalf of such Person in all matters (other than financial matters) arising
under this Agreement or any other Loan Document.
"Revolving Loan" means a Loan made to the Borrower pursuant to
Section 2.1.
"Revolving Loan Borrowing" means a borrowing by the Borrower
consisting of Revolving Loans made on the same day by the Banks ratably
according to their respective Revolving Loan Commitments.
"Revolving Loan Commitment" has the meaning specified in
Section 2.1(a).
"S&P" means Standard & Poor's Ratings Group.
"Scheduled Revolving Loan Commitment Reduction Date" has the
meaning specified in Section 2.3(b).
"Single-Employer Plan" shall mean a single-employer plan as defined
in section 4001(a)(15) of ERISA which is subject to the provisions of Title IV
of ERISA.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
Equity having ordinary voting power to elect a majority of the board of
directors of such entity (irrespective of whether, at the time, Equity of any
other class or classes of such entity shall have or might have voting power by
reason of the happening of any contingency) is, or of which more than 50% of the
interests in which are, at the time, directly or indirectly, owned by such
Person and/or one or more Subsidiaries of such Person.
16
"Subsidiary Borrower" means Viacom International, as borrower under
the Subsidiary Facility.
"Subsidiary Facility" means the Amended and Restated VII Credit
Agreement, dated as of the date hereof, among Viacom International, the banks
parties thereto, The Bank of New York, Citibank, N.A., ▇▇▇▇▇▇ Guaranty Trust
Company of New York, Bank of America NT&SA and The Chase Manhattan Bank, as
Managing Agents, The Bank of New York, as Documentation Agent, Citibank, N.A.,
as the Administrative Agent, ▇▇ ▇▇▇▇▇▇ Securities Inc. and Bank of America
NT&SA, as the Syndication Agents, the banks identified as Agents on the
signature pages thereof, as Agents, and the banks identified as Co-agents on the
signature pages thereof, as Co-Agents.
"Syndication Agents" means each of ▇▇ ▇▇▇▇▇▇ Securities Inc. and
Bank of America NT&SA acting in such capacity, or any successor in such
capacity.
"Tax Affiliate" means, as to any Person, (i) any Subsidiary of such
Person, or (ii) any Affiliate of such Person with which such Person files or is
required to file consolidated, combined or unitary tax returns.
"Tax Sharing Agreement" means the Income Tax Agreement, dated as of
August 15, 1987, as amended, among NAI, the Borrower and Viacom International.
"Term Loan" means a Loan made to the Borrower pursuant to Section
3.1.
"Term Loan Borrowing" means a borrowing by the Borrower consisting
of Term Loans made on the same day by the Banks ratably according to their
respective Term Loan Commitments.
"Term Loan Commitment" has the meaning specified in Section 3.1(a).
"Title IV Plan" means a Pension Plan, other than a Multiemployer
Plan, which is covered by Title IV of ERISA.
"Total Cash Interest and Preferred Dividends" means, for any period,
the sum of the following amounts: (i) the cash interest expense incurred by the
Borrower and its Subsidiaries during the preceding four Fiscal Quarters with
respect to the aggregate amount of all Indebtedness outstanding during such
period plus (ii) the cash dividends paid by the Borrower and its Subsidiaries to
Persons other than the Borrower and its wholly owned Subsidiaries during such
four Fiscal Quarters with respect to preferred stock.
17
"Total Debt" of the Borrower and its Subsidiaries means, on any
date, the total outstanding Indebtedness of the Borrower and its Subsidiaries on
a consolidated basis; provided that for purposes of calculating the Total
Leverage Ratio, Total Debt shall be reduced by 65% of cash, Cash Equivalents and
short-term investments held by the Borrower and its Subsidiaries on a
consolidated basis.
"Total Leverage Ratio" means the consolidated ratio of Total Debt to
EBIDT as to the Borrower.
"UPN Network" means United Paramount Network.
"Viacom International" means Viacom International Inc., a Delaware
corporation and a wholly owned subsidiary of the Borrower.
"VII Guarantee" means the guarantee by Viacom International of the
obligations of the Borrower pursuant to this Agreement, substantially in the
form of Exhibit B hereto.
"Withdrawal Liability" means, as to any Person, at any time, the
aggregate amount of the liabilities, if any, of such Person pursuant to Section
4201 of ERISA.
1.2. Computation of Time Periods. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding" and the word "through" means "to and including".
1.3. Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP.
The parties hereto agree, however, that in the event that any change
in accounting principles from those used in the preparation of the financial
statements referred to in Section 6.4(a) is hereafter occasioned by the
promulgation of rules, regulations, pronouncements, opinions and statements by
or required by the Financial Accounting Standards Board or Accounting Principles
Board or the American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) and such change materially affects
the calculation of any component of any financial covenant, standard or term
contained in this Agreement, the Managing Agents and the Borrower shall
negotiate in good faith to amend such financial covenants, standards or terms
found in this Agreement (other than in respect of financial statements to be
delivered hereunder) so that, upon adoption of such changes, the criteria for
evaluation of the Borrower's and its Subsidiaries' financial condition shall be
the same after such change as if such change had not been made; provided,
however, that (i) any such
18
amendments shall not become effective for purposes of this Agreement unless
approved by the Majority Banks and (ii) if the Borrower and the Majority Banks
cannot agree on such an amendment, then the calculations under such financial
covenants, standards or terms shall continue to be computed without giving
effect to such change in accounting principles.
ARTICLE II
AMOUNT AND TERMS OF THE REVOLVING LOANS
2.1. The Revolving Loans. (a) The Revolving Loans. On the terms and
subject to the conditions contained in this Agreement, each Bank severally
agrees to make (or continue) Revolving Loans to the Borrower from time to time
on any Business Day during the period from the Initial Funding Date until the
Commitment Termination Date in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Bank's name on Schedule II as its
"Revolving Loan Commitment" (as adjusted from time to time by reason of
assignments in accordance with the provisions of Section 12.7 and as such amount
may be reduced pursuant to Section 2.3 such Bank's "Revolving Loan Commitment");
provided, however, that, following the making of each such proposed Revolving
Loan, the aggregate amount of all Revolving Loans, together with the aggregate
face amount of Commercial Paper outstanding, shall not exceed the aggregate
amount of the Revolving Loan Commitment of the Banks at such time. Within the
limits of each Bank's Revolving Loan Commitment, amounts borrowed under this
Section 2.1(a) and prepaid pursuant to Section 2.5 may be reborrowed under this
Section 2.1(a).
(b) Evidence of Debt. (i) Each Bank shall maintain in accordance
with its usual practice an account or accounts evidencing the Indebtedness to
such Bank resulting from each Revolving Loan made by such Bank to the Borrower
from time to time, including the amounts of principal and interest payable and
paid to such Bank from time to time hereunder.
(ii) The Register maintained by the Administrative Agent pursuant to
Section 12.7(g) shall include a "Revolving Loan contract control account" for
each Bank, in which account shall be recorded (A) the date and amount of each
Revolving Loan Borrowing hereunder, (B) the amount and type of each Bank's
Revolving Loan comprising such Borrowing and any Interest Period applicable
thereto, (C) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Bank with respect to each such
Revolving Loan hereunder and (D) the amount of any sum received by the
Administrative Agent from the Borrower with respect to such Revolving Loans
hereunder and each Bank's Ratable Portion thereof.
19
(iii) The entries made in the Register in respect of the Revolving
Loans shall be conclusive and binding for all purposes, absent manifest error.
2.2. Making the Revolving Loans. (a) Each Revolving Loan Borrowing
shall be made upon receipt of a Notice of Borrowing, given by the Borrower to
the Administrative Agent not later than (i) 9:30 A.M. (New York City time) on
the Business Day of the proposed Revolving Loan Borrowing, in the event such
Revolving Loan Borrowing is to be comprised of Base Rate Loans, and (ii) 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Revolving Loan Borrowing, in the event such Revolving Loan Borrowing is
to be comprised of Eurodollar Rate Loans.
(b) The Administrative Agent shall give to each Bank prompt notice
(but in any event on the same day) of its receipt of a Notice of Borrowing in
respect of Revolving Loans and, if Eurodollar Rate Loans are properly requested
in such Notice of Borrowing, upon its determination thereof, notice of the
applicable interest rate under Section 4.3(b). Each Bank shall, before 11:00
A.M. (or in the case of a Revolving Loan Borrowing being made on the same day,
before 12:00 noon) (New York City time) on the date of the proposed Revolving
Loan Borrowing, make available for the account of its Applicable Lending Office
to the Administrative Agent at its address referred to in Section 12.2, in
immediately available funds, such Bank's Ratable Portion of such proposed
Revolving Loan Borrowing. After the Administrative Agent's receipt of such funds
and upon fulfillment of the applicable conditions set forth in Article V, the
Administrative Agent will make such funds available to the Borrower at the
Administrative Agent's aforesaid address.
(c) Each Revolving Loan Borrowing pursuant to this Section 2.2 shall
be in an aggregate amount of not less than $5,000,000 or an integral multiple of
$5,000,000 in excess thereof.
(d) Each Notice of Borrowing pursuant to this Section 2.2 shall be
irrevocable and binding on the Borrower. In the case of any proposed Revolving
Loan Borrowing comprised of Eurodollar Rate Loans, the Borrower shall indemnify
each Bank against any loss, cost or expense incurred by such Bank as a result of
any failure to fulfill on or before the date specified in such Notice of
Borrowing for such proposed Borrowing the applicable conditions set forth in
Article V, including, without limitation, any loss (excluding loss of the margin
payable in accordance with Section 4.2 on the amount of principal not borrowed
as a result of such failure), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Bank to
fund any Eurodollar Rate Loan to be made by such Bank as part of such proposed
Revolving Loan Borrowing when such Eurodollar Rate Loan, as a result of such
failure, is not made on such date.
20
(e) Unless the Administrative Agent shall have received notice from
a Bank prior to the date of any proposed Revolving Loan Borrowing pursuant to
this Section 2.2 that such Bank will not make available to the Administrative
Agent such Bank's Ratable Portion of such Revolving Loan Borrowing, the
Administrative Agent may assume that such Bank has made such Ratable Portion
available to the Administrative Agent on the date of such Revolving Loan
Borrowing in accordance with this Section 2.2 and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such Ratable Portion available to the Administrative Agent and the
Administrative Agent has so made available such amount, such Bank and the
Borrower severally agree 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 the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to the Revolving Loan
comprising such Revolving Loan Borrowing and (ii) in the case of such Bank, the
Federal Funds Rate. If such Bank shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Bank's
Revolving Loan as part of such Borrowing for purposes of this Agreement. If the
Borrower shall repay to the Administrative Agent such corresponding amount, such
payment shall not relieve such Bank of any obligation it may have to the
Borrower hereunder.
(f) The failure of any Bank to make the Revolving Loan to be made by
it as part of any Revolving Loan Borrowing pursuant to this Section 2.2 shall
not relieve any other Bank of its obligation, if any, hereunder to make its
Revolving Loan on the date of such Borrowing, but no Bank shall be responsible
for the failure of any other Bank to make the Revolving Loan to be made by such
other Bank on the date of any such Revolving Loan Borrowing.
2.3. Termination/Reduction of the Revolving Loan Commitments. (a)
Scheduled Reductions. The Revolving Loan Commitment of each Bank shall be
automatically reduced on each date specified in column (x) below (each such
date, a "Scheduled Revolving Loan Commitment Reduction Date") by an amount equal
to such Bank's Ratable Portion of the amount specified in column (y) below
opposite such date:
(x) (y)
Scheduled Revolving Amounts of
Loan Commitment Reduction of
Reduction Date Loan Commitments
-------------- ----------------
July 1, 1998 211,538,000
October 1, 1998 211,538,000
January 1, 1999 211,538,000
21
(x) (y)
Scheduled Revolving Amounts of
Loan Commitment Reduction of
Reduction Date Loan Commitments
-------------- ----------------
April 1, 1999 211,538,000
July 1, 1999 211,538,000
October 1, 1999 211,538,000
January 1, 2000 317,308,000
April 1, 2000 317,308,000
July 1, 2000 317,308,000
October 1, 2000 317,308,000
January 1, 2001 370,192,000
April 1, 2001 370,192,000
July 1, 2001 370,192,000
October 1, 2001 370,192,000
January 1, 2002 493,590,000
April 1, 2002 493,590,000
July 1, 2002 493,592,000
The amounts under (y) shall be adjusted in the amounts and in the
manner required under Section 2.3(b).
(b) Optional Reductions. The Borrower shall have the right, upon at
least three Business Days' prior notice to the Administrative Agent, to
terminate in whole or permanently reduce ratably in part the unused portions of
the respective Revolving Loan Commitments of the Banks; provided, however, that
each partial reduction shall be in the aggregate amount of not less than
$5,000,000 or an integral multiple of $5,000,000 in excess thereof; and provided
further, however, that if any such optional reduction of the Revolving Loan
Commitment that is made at the Borrower's option as a result of the receipt by
the Borrower of Net Cash Proceeds of asset sales or Capital Market Transactions
shall be made (a) 50% in order of scheduled commitment reductions, and (b) 50%
pro rata among all remaining scheduled commitment reductions applicable to the
Revolving Loan Commitment; except as provided in the second proviso above,
optional reductions may be allocated against Scheduled Revolving Loan Commitment
Reduction Dates in any manner requested by the Borrower.
(c) Payment of Commitment Fee. Simultaneously with any termination
or reduction of the Revolving Loan Commitments pursuant to this Section 2.3, the
Borrower shall pay to the Administrative Agent for the account of each Bank the
applicable Commitment Fee, if any, on the amount of the Revolving Loan
Commitments so terminated or reduced and owed to such Bank through the date of
such termination or reduction.
22
2.4. Repayment of the Revolving Loan. The Borrower shall repay the
outstanding principal amount of the Revolving Loan (together with all accrued
but unpaid interest thereon) in full on the Commitment Termination Date.
2.5. Optional Prepayments of the Revolving Loan. The Borrower may,
upon at least three Business Days' prior notice (or at least one Business Day's
prior notice in the case of Base Rate Loans), to the Administrative Agent
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given the Borrower shall, prepay the outstanding principal
amount of the Revolving Loan comprising a part of the same Revolving Loan
Borrowing, in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that
the Borrower shall indemnify the Banks pursuant to Section 12.4(c) in the event
that any prepayment of any Eurodollar Rate Loans shall be made on a day other
than the last day of an Interest Period for such Loans; and provided further,
however, that each partial prepayment permitted under this Section 2.5 shall be
in an aggregate amount not less than $5,000,000 or integral multiples of
$1,000,000 in excess thereof.
2.6. Mandatory Prepayment. The Borrower shall prepay Revolving Loans
to the extent necessary to ensure that (i) the aggregate amount of all Revolving
Loans outstanding will not at any time exceed the Revolving Loan Commitments of
the Banks and (ii) the aggregate amount of all Revolving Loans outstanding,
together with the aggregate face amount of Commercial Paper outstanding, will
not at any time exceed the aggregate amount of the Revolving Loan Commitments of
the Banks. Any prepayments required to assure that the aggregate unused amount
of the Revolving Loan Commitments is not less than the face amount of
outstanding Commercial Paper shall be applied to the Revolving Loans.
ARTICLE III
THE TERM LOANS
3.1. The Term Loans. (a) The Term Loans. On the terms and subject to
the conditions contained in this Agreement, each Bank severally agrees to make
(or continue) a Term Loan to the Borrower on the Initial Funding Date in an
amount not to exceed the amount set forth opposite such Bank's name on Schedule
II as its "Term Loan Commitment" (as adjusted from time to time by reason of
assignments in accordance with the provisions of Section 12.7 and as such amount
may be reduced pursuant to Section 3.3, such Bank's "Term Loan Commitment").
23
(b) Evidence of Debt. (i) Each Bank shall maintain in accordance
with its usual practice an account or accounts evidencing the Indebtedness to
such Bank resulting from the Term Loan made by such Bank to the Borrower,
including the amounts of principal and interest payable and paid to such Bank
from time to time hereunder.
(ii) The Register maintained by the Administrative Agent pursuant to
Section 12.7(g) shall include a "Term Loan contract control account" for each
Bank, in which account shall be recorded (A) the date and amount of any Term
Loan Borrowing hereunder, (B) the amount and type of each Bank's Term Loan
comprising such Borrowing and any Interest Period applicable thereto, (C) the
amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Bank with respect to each such Term Loan hereunder and
(D) the amount of any sum received by the Administrative Agent from the Borrower
with respect to such Term Loans hereunder and each Bank's Ratable Portion
thereof.
(iii) The entries made in the Register in respect of Term Loans
shall be conclusive and binding for all purposes, absent manifest error.
3.2. Making the Term Loans. (a) The Term Loan Borrowing shall be
made upon receipt of a Notice of Borrowing, given by the Borrower to the
Administrative Agent not later than (i) 9:30 A.M. (New York City time) on the
Initial Funding Date, in the event the Term Loan Borrowing is to be comprised of
Base Rate Loans, and (ii) 11:00 A.M. (New York City time) on the third Business
Day prior to the Initial Funding Date, in the event the Term Loan Borrowing is
to be comprised of Eurodollar Rate Loans.
(b) The Administrative Agent shall give to each Bank prompt notice
(but in any event on the same day) of its receipt of a Notice of Borrowing in
respect of Term Loans and, if Eurodollar Rate Loans are properly requested in
such Notice of Borrowing, upon its determination thereof, notice of the
applicable interest rate under Section 4.3(b). Each Bank shall, before 11:00
A.M. (or in the case of a Term Loan Borrowing being made on the same day, before
12:00 noon) (New York City time) on the date of the proposed Term Loan
Borrowing, make available for the account of its Applicable Lending Office to
the Administrative Agent at its address referred to in Section 12.2, in
immediately available funds, such Bank's Ratable Portion of such proposed Term
Loan Borrowing. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article V, the
Administrative Agent will make such funds available to the Borrower at the
Administrative Agent's above-referenced address.
(c) The Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of a proposed Term Loan Borrowing comprised of Eurodollar
Rate
24
Loans, the Borrower shall indemnify each Bank against any loss, cost or expense
incurred by such Bank as a result of any failure to fulfill on or before the
date specified in the Notice of Borrowing the applicable conditions set forth in
Article V, including, without limitation, any loss (excluding loss of the margin
payable in accordance with Section 4.2 on the amount of principal not borrowed
as a result of such failure), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Bank to
fund the Eurodollar Rate Loan to be made by such Bank as part of the proposed
Term Loan Borrowing when such Eurodollar Rate Loan, as a result of such failure,
is not made on such date.
(d) Unless the Administrative Agent shall have received notice from
a Bank prior to the date of the proposed Term Loan Borrowing that such Bank will
not make available to the Administrative Agent such Bank's Ratable Portion of
the Term Loan Borrowing, the Administrative Agent may assume that such Bank has
made such Ratable Portion available to the Administrative Agent on the date of
the Term Loan Borrowing in accordance with this Section 3.2 and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that such
Bank shall not have so made such Ratable Portion available to the Administrative
Agent and the Administrative Agent has so made available such amount, such Bank
and the Borrower severally agree 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 the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to the Term Loans comprising
the Term Loan Borrowing and (ii) in the case of such Bank, the Federal Funds
Rate. If such Bank shall repay to the Administrative Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Term Loan as part of
such Borrowing for purposes of this Agreement. If the Borrower shall repay to
the Administrative Agent such corresponding amount, such payment shall not
relieve such Bank of any obligation it may have to the Borrower hereunder.
(e) The failure of any Bank to make its Term Loan shall not relieve
any other Bank of its obligation, if any, hereunder to make its Term Loan on the
date of such Borrowing, but no Bank shall be responsible for the failure of any
other Bank to make the Term Loan to be made by such other Bank.
3.3. Repayment of Term Loans. The principal amount of the Term Loan
of each Bank shall be payable in quarterly installments on January 1, April 1,
July 1 and October 1 of each year, commencing July 1, 1998, and ending on April
1, 2002, in an amount equal to such Bank's Ratable Portion of the quarterly
amounts set forth in column (y) below opposite the period specified in column
(x) during which such date occurs:
25
(x) (y)
Required Quarterly Amounts
Quarter of Term Loan Reductions
------- -----------------------
July 1, 1998 38,462,000
October 1, 1998 38,462,000
January 1, 1999 38,462,000
April 1, 1999 38,462,000
July 1, 1999 38,462,000
October 1, 1999 38,462,000
January 1, 2000 57,692,000
April 1, 2000 57,692,000
July 1, 2000 57,692,000
October 1, 2000 57,692,000
January 1, 2001 67,308,000
April 1, 2001 67,308,000
July 1, 2001 67,308,000
October 1, 2001 67,308,000
January 1, 2002 89,744,000
April 1, 2002 79,484,000
The amounts under (y) shall be adjusted in the amounts and in the manner
required under Section 3.4.
.
3.4. Optional Prepayments of the Term Loans. The Borrower may, upon
at least three Business Days' prior notice (or at least one Business Day's prior
notice in the case of Base Rate Loans) to the Administrative Agent stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding principal amount of
the Term Loans, in whole or in part, together with accrued interest to the date
of such prepayment; provided, however, that the Borrower shall indemnify the
Banks pursuant to Section 12.4(c) in the event that any prepayment of any
Eurodollar Rate Loans shall be made on a day other than the last day of an
Interest Period for such Loans. Amounts borrowed under Section 3.1(a) and
prepaid pursuant to this Section 4.4 may not be reborrowed. Any such prepayment
of the Term Loans that is made at the Borrower's option as a result of the
receipt by the Borrower of Net Cash Proceeds of asset sales or Capital Market
Transactions shall be applied (a) 50% in order of maturity, and (b) 50% pro rata
among all remaining maturities applicable to the Term Loan Commitment; any other
prepayment made at the Borrower's option may be allocated among remaining
maturities in any manner requested by the Borrower. Upon any prepayment of the
Term Loans, the Term Loan Commitment shall be reduced by the amount of any such
prepayment.
26
ARTICLE IV
CONVERSION, INTEREST, PAYMENTS, FEES, ETC.
4.1. Conversion/Continuation Option. The Borrower may elect (i) at
any time to convert Base Rate Loans or any portion thereof to Eurodollar Rate
Loans or (ii) at the end of any Interest Period with respect thereto, to convert
Eurodollar Rate Loans or any portion thereof into Base Rate Loans, or to
continue such Eurodollar Rate Loans or any portion thereof as Eurodollar Rate
Loans for an additional Interest Period; provided, however, that the aggregate
of the Eurodollar Rate Loans of the Borrower so converted or so continued for
each Interest Period must be in the amount of $5,000,000 or an integral multiple
of $5,000,000 in excess thereof. Each such election shall be in substantially
the form of Exhibit C hereto (a "Notice of Conversion or Continuation") and
shall be made by giving the Administrative Agent at least one Business Day's, in
the case of a conversion to a Base Rate Loan, and three Business Days', in the
case of a conversion to or a continuation of a Eurodollar Rate Loan, prior
written notice thereof specifying (A) the amount and type of conversion or
continuation, (B) in the case of a conversion to or a continuation of Eurodollar
Rate Loans, the Interest Period therefor, and (C) in the case of a conversion
the date of conversion (which date shall be a Business Day and, if a conversion
from a Eurodollar Rate Loan, shall also be the last day of the Interest Period
therefor). The Administrative Agent shall promptly (but in any event on the same
day) notify each Bank of its receipt of a Notice of Conversion or Continuation
and of the contents thereof. Notwithstanding the foregoing, no conversion in
whole or in part of Base Rate Loans to Eurodollar Rate Loans, and no
continuation in whole or in part of Eurodollar Rate Loans upon the expiration of
any Interest Period therefor, shall be permitted at any time at which an Event
of Default shall have occurred and be continuing. If, within the time period
required under the terms of this Section 4.1, the Administrative Agent does not
receive a Notice of Conversion or Continuation from the Borrower containing an
election to continue all or any portion of the Eurodollar Rate Loans for an
additional Interest Period or to convert all or any portion of such Loans, then,
upon the expiration of the Interest Period therefor, such Loans or the portions
thereof for which an election to continue or convert has not been made will be
automatically converted to Base Rate Loans. Each Notice of Conversion or
Continuation shall be irrevocable.
4.2. Interest. The Borrower shall pay interest on the unpaid
principal amount of each Loan from the date thereof until the principal amount
thereof shall be paid in full, at the following rates per annum:
(a) Base Rate Loans. For Base Rate Loans, at a rate per annum equal
at all times to the Base Rate in effect from time to time, payable
quarterly in arrears on the last day of each September, December, March
and June, on the
27
Commitment Termination Date and on the date any Base Rate Loan is
converted or paid in full.
(b) Eurodollar Rate Loans. For Eurodollar Rate Loans, at a rate per
annum equal at all times during the applicable Interest Period for each
Eurodollar Rate Loan to the sum of the Eurodollar Rate for such Interest
Period plus the Applicable Eurodollar Rate Margin, payable in arrears (i)
on the last day of such Interest Period and (ii) if such Interest Period
has a duration of more than three months, on each day during such Interest
Period that occurs every three months from the first day of such Interest
Period.
(c) Default Rate of Interest. If any amount of principal of any Loan
is not paid when due, whether at stated maturity, by acceleration or
otherwise, the interest rate applicable to any such amount shall be
increased by 2.00% per annum, payable on demand, and if any interest, fee
or other amount payable hereunder is not paid when due, such amount shall
bear interest at a rate per annum equal at all times to the Base Rate in
effect from time to time plus 2% per annum payable on demand.
4.3. Interest Rate Determination and Protection. (a) In the event
that the Eurodollar Rate is not available from the Telerate Page, the Eurodollar
Rate for each Interest Period for Eurodollar Rate Loans shall be determined by
the Administrative Agent on the basis of applicable rates furnished to and
received by the Administrative Agent from the Reference Banks two Business Days
before such Interest Period. Each Reference Bank agrees to furnish to the
Administrative Agent timely information for the purpose of determining each
Eurodollar Rate. If any of the Reference Banks shall not furnish such timely
information to the Administrative Agent for the purpose of determining any such
interest rate, the Administrative Agent shall determine such interest rate on
the basis of timely information furnished by the other Reference Bank or
Reference Banks.
(b) The Administrative Agent shall give prompt notice to the
Borrower and the Banks of the applicable interest rate determined by the
Administrative Agent for purposes of Section 4.2(a) or (b), and the applicable
rate, if any, furnished by each Reference Bank for the purpose of determining
the applicable interest rate under Section 4.2(b).
(c) If, with respect to Eurodollar Rate Loans, the Majority Banks
determine in good faith and notify the Administrative Agent that the Eurodollar
Rate for any Interest Period will not adequately reflect the cost to such Banks
of making such Loans or funding or maintaining their respective Eurodollar Rate
Loans for such Interest
28
Period, the Administrative Agent shall forthwith so notify the Borrower and the
Banks, whereupon
(i) each Eurodollar Rate Loan will automatically, on the last day of
the then existing Interest Period therefor, convert into a Base Rate Loan
unless the Majority Banks notify the Administrative Agent that the
circumstances causing such conversion no longer exist and the Borrower
delivers a timely Notice of Conversion or Continuation with respect to
such Loans; and
(ii) the obligations of the Banks to make Eurodollar Rate Loans or
to convert Loans into Eurodollar Rate Loans shall be suspended until the
Administrative Agent shall notify the Borrower and the Banks that the
circumstances causing such suspension no longer exist.
4.4. Fees. (a) The Borrower will pay on the last day of each Fiscal
Quarter to each of the Banks quarterly in arrears a fee (the "Commitment Fee")
accruing from the Original Funding Date to the Initial Funding Date at the rate
and to the Banks as provided for in the Existing Agreement and accruing
thereafter, in the case of each Bank listed on the signature pages hereof, and
from any later effective date of the assignment pursuant to which it became a
Bank, in the case of each other Bank, until the Commitment Termination Date, on
such Bank's aggregate average daily unused Commitment as in effect from time to
time at the rate set forth below opposite the Credit Rating applicable to the
Borrower on such date:
CREDIT RATING COMMITMENT FEE
A-/A3 or better 0.1000%
BBB+/Baa1 0.1250%
BBB/Baa2 0.1500%
BBB-/Baa3 0.1750%
BB+/Ba1 0.2250%
BB/Ba2 0.2750%
BB-/Ba3 or lower 0.3250%
; provided, however, that if the ratings assigned by S&P and ▇▇▇▇▇'▇ shall
differ the Credit Rating shall be the rating which is the higher rating. Any
change in the Credit Rating of the Borrower shall be effective to adjust the
Commitment Fee as of the date such change is announced.
29
(b) The Borrower has agreed to pay to the Banks, Managing Agents,
Agents, Co-Agents and Arrangers certain other fees which are earned on the date
of the signing of this Agreement and payable on the Initial Funding Date as
separately agreed.
4.5. Increased Costs. (a) If, due to either (i) the introduction of
or any change (other than any change by way of imposition or increase of reserve
requirements included in the Eurodollar Rate Reserve Percentage) in, or in the
interpretation of, any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost (other than with respect to income, franchise or withholding taxes or other
taxes of a similar nature) to any Bank of agreeing to make or making, funding or
maintaining any Eurodollar Rate Loans, then (A) such Bank shall, as soon as such
Bank becomes aware of such increased cost, but in any event not later than 60
days after such increased cost was incurred, deliver to the Borrower and the
Administrative Agent a certificate stating (1) the actual amount of such
increased cost incurred by such Bank and (2) that it is such Bank's customary
practice, from and after the date of this Agreement, to charge its borrowers for
increased costs incurred by it; (B) the Borrower shall, within 30 days after its
receipt of such certificate, at its sole option, either (1) pay to the
Administrative Agent for the account of such Bank amounts sufficient to
compensate such Bank for the increased cost incurred by it as set forth in the
certificate referred to above or (2) replace such Bank in accordance with the
provisions of Section 4.10, provided that if the Borrower does not exercise the
option specified in clause (2) above within 30 days after receipt of the
certificate referred to above, then (x) such Bank shall deliver to the Borrower
and the Administrative Agent a second certificate stating the increased cost
incurred by such Bank and (y) the Borrower shall promptly upon receipt of such
second certificate pay to the Administrative Agent for the account of such Bank
amounts sufficient to compensate such Bank for such increased cost; and (C) such
Bank shall use its reasonable best efforts to designate another of its then
existing offices as its Applicable Lending Office if the making of such
designation would, without any detrimental effect to such Bank, avoid the need
for, or reduce the amount of, future increased costs which are probable of being
incurred by such Bank. The amount of increased costs payable by the Borrower to
any Bank as stated in any such certificate delivered to the Borrower and the
Administrative Agent pursuant to the provisions of this Section 4.5(a) shall be
conclusive and binding for all purposes, absent manifest error. In determining
any such amount, such Bank may use reasonable averaging and attribution methods.
If the Borrower so notifies the Administrative Agent within five Business Days
after receipt of any certificate delivered to the Borrower pursuant to the
provisions of this Section 4.5(a), the Borrower may either (x) prepay in full
all Eurodollar Rate Loans of such Bank then outstanding in accordance with
Section 4.8 and, additionally, reimburse such Bank for such increased cost in
accordance with this Section 4.5(a) or (y) convert all Eurodollar Rate Loans of
all Banks then outstanding into Base Rate Loans in accordance
30
with Section 4.1 and, additionally, reimburse such Bank for such increased cost
in accordance with this Section 4.5(a).
(b) If any Bank shall be required under Regulation D to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, then (i) such Bank shall, within 60 days after the end
of any Interest Period with respect to any Eurodollar Rate Loan during which
such Bank was so required to maintain such reserves, deliver to the Borrower and
the Administrative Agent a certificate stating (A) that such Bank was required
to maintain reserves and as a result such Bank incurred additional costs in
connection with making Eurodollar Rate Loans, (B) in reasonable detail, such
Bank's computations of the amount of additional interest payable by the Borrower
pursuant to the provisions of this Section 4.5(b)(ii) and (C) that it is such
Bank's customary practice, from and after the date of this Agreement, to charge
its borrowers for reserves so maintained by it, and (ii) the Borrower shall,
promptly upon receipt of any such certificate, pay to the Administrative Agent,
for the account of such Bank, additional interest on the unpaid principal amount
of each Eurodollar Rate Loan of such Bank outstanding during the Interest Period
with respect to which the above-referenced certificate was delivered to the
Borrower, at a rate per annum equal to the difference obtained by subtracting
(x) the Eurodollar Rate for such Interest Period from (y) the rate obtained by
dividing such Eurodollar Rate by a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage of such Bank for such Interest Period. The amount of
interest payable by the Borrower to any Bank as stated in any certificate
delivered to the Borrower and the Administrative Agent pursuant to the
provisions of this Section 4.5(b) shall be conclusive and binding for all
purposes, absent manifest error.
(c) The payments required under Sections 4.5(a) and (b) are in
addition to any other payments and indemnities required under this Agreement.
4.6. Illegality. Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation of
any law or regulation, in each case after the date hereof, shall make it
unlawful, or any central bank or other Governmental Authority shall assert that
it is unlawful, for any Bank or its Eurodollar Lending Office to make Eurodollar
Rate Loans or to continue to fund or maintain Eurodollar Rate Loans, then, on
notice thereof and demand therefor by such Bank to the Borrower through the
Administrative Agent, (i) the obligation of such Bank to make or to continue
Eurodollar Rate Loans and to convert Base Rate Loans into Eurodollar Rate Loans
shall be suspended until such Bank through the Administrative Agent shall notify
the Borrower that the circumstances causing such suspension no longer exist and
(ii) the Borrower shall forthwith prepay in full all Eurodollar Rate Loans of
such Bank then outstanding, together with interest accrued thereon, unless the
Borrower, within five Business Days of such notice and demand, converts all
Eurodollar Rate Loans of all
31
Banks then outstanding into Base Rate Loans in accordance with the notice
periods of Section 4.1; provided, however, that before making any such demand,
each Bank agrees to use its reasonable best efforts to designate another of its
then existing offices as its Applicable Lending Office if the making of such a
designation would, without any detrimental effect to such Bank, cause the making
of Eurodollar Rate Loans to not be subject to this Section 4.6.
4.7. Capital Adequacy. If any Bank shall, at any time, reasonably
determine that (a) the adoption (i) after the date of this Agreement, of any
capital adequacy guidelines or (ii) at any time, of any other applicable law,
government rule, regulation or order regarding capital adequacy of banks or bank
holding companies, (b) any change in (i) any of the foregoing or (ii) the
interpretation or administration of any of the foregoing by any Governmental
Authority, central bank or comparable agency or (c) compliance with any policy,
guideline, directive or request regarding capital adequacy (whether or not
having the force of law and whether or not failure to comply therewith would be
unlawful) of any Governmental Authority, central bank or comparable agency,
would have the effect of reducing the rate of return on the capital of such Bank
to a level below that which such Bank could have achieved but for such adoption,
change or compliance (taking into consideration the policies of such Bank with
respect to capital adequacy in effect immediately before such adoption, change
or compliance) and (x) such reduction is as a consequence of the Commitment of,
or the making, converting or continuing of any Loans by, such Bank hereunder and
(y) such reduction is reasonably deemed by such Bank to be material, then (1)
such Bank shall deliver to the Borrower and the Administrative Agent a
certificate stating the reduction in the rate of return such Bank will in the
future suffer as a result of its Commitment or the making, converting or
continuing any Loans by it to the Borrower hereunder and (2) the Borrower shall,
within 30 days after its receipt of such certificate, at its sole option, either
(A) pay to the Administrative Agent for the account of such Bank from time to
time as specified by such Bank such amount as shall be sufficient to compensate
such Bank for such reduced return, or (B) replace such Bank in accordance with
the provisions of Section 4.10; provided, however, that if the Borrower does not
exercise the option specified in clause (B) above within 30 days after receipt
of the certificate referred to above, then (1) such Bank shall deliver to the
Borrower and the Administrative Agent a second certificate stating the reduction
in the rate of return of such Bank and (2) the Borrower shall promptly pay, as
specified by such Bank, to the Administrative Agent for the account of such Bank
amounts sufficient to compensate such Bank for the reduction in its rate of
return. The amount stated in any certificate delivered to the Borrower pursuant
to the provisions of this Section 4.7 shall be conclusive and binding for all
purposes, absent manifest error. In determining any such amount, such Bank may
use reasonable averaging and attribution methods. The payments required under
this Section 4.7 are in addition to any other payments and indemnities required
hereunder.
32
4.8. Payments and Computations. (a) The Borrower shall make each
payment payable by it hereunder not later than 11:00 A.M. (New York City time)
on the day when due, in Dollars, to the Administrative Agent at its address
referred to in Section 12.2 in immediately available funds without set-off or
counterclaim. The Administrative Agent will promptly thereafter (but in any
event on the same day) cause to be distributed like funds relating to the
payment of principal or interest or fees ratably (other than amounts payable
pursuant to Section 4.5, 4.6 or 4.7) to the Banks for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Bank to such Bank for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Payment received by the Administrative Agent after
11:00 A.M. (New York City time) shall be deemed to be received on the next
Business Day; provided, however, that the Administrative Agent shall use its
reasonable best efforts to invest any amounts so received by the Administrative
Agent in overnight investments satisfactory to the Borrower, and any earnings on
any such investments shall be for the Borrower's account and may be credited
against any interest payable hereunder during such period.
(b) All computations of the Commitment Fee or of interest based on
the rate of interest specified in clause (a) of the definition of Base Rate and
of fees shall be made by the Administrative Agent on the basis of a year of 365
or 366 days, as the case may be, and all computations of interest based on the
Eurodollar Rate or the Federal Funds Rate shall be made by the Administrative
Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest and fees are payable. All computations of the
Commitment Fee shall be based on the aggregate average daily unused Commitment
of each Bank. Each determination by the Administrative Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(c) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or fees, as the case may be.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment in full to the Administrative
Agent, each Bank shall repay to the Administrative Agent forthwith
33
on demand such amount distributed to such Bank together with interest thereon,
for each day from the date such amount is distributed to such Bank until the
date such Bank repays such amount to the Administrative Agent, at the Federal
Funds Rate.
4.9. Sharing of Payments, Etc. If any Bank shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Loans made by it (other than pursuant to Section
4.5, 4.6 or 4.7) in excess of its Ratable Portion of payments on account of the
Loans obtained by all the Banks, such Bank shall forthwith purchase from the
other Banks such participations in the Loans made by them as shall be necessary
to cause such purchasing Bank to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Bank, such purchase from each Bank
shall be rescinded and each such Bank shall repay to the purchasing Bank the
purchase price to the extent of such recovery together with an amount equal to
such Bank's ratable share (according to the proportion of (i) the amount of such
Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower agrees
that any Bank so purchasing a participation from another Bank pursuant to this
Section 4.9 may, to the fullest extent permitted by law, exercise all its rights
of payment (including the right of set-off) with respect to such participation
as fully as if such Bank were the direct creditor of the Borrower in the amount
of such participation.
4.10. Replacement Banks. Upon the election of the Borrower to
replace any Bank pursuant to the provisions of Section 4.5(a)(B)(2) or
4.7(2)(B), the Borrower shall provide to the Administrative Agent a notice
setting forth the replacement Bank or Banks, and the Bank being so replaced
shall take all actions as may be necessary to transfer to such replacement Bank
or Banks all of the rights and obligations of such Bank hereunder and such
replacement Bank or Banks shall pay to the Bank being so replaced the amount
outstanding of all Loans made by such Bank hereunder (with appropriate
provisions for other amounts due to the Bank being replaced), all as though such
replacement Bank or Banks were an assignee or assignees of such Bank to which
such Bank were making an assignment in accordance with the provisions of Section
12.7.
ARTICLE V
CONDITIONS OF LENDING
5.1. Conditions Precedent to the Effectiveness of this Agreement.
The effectiveness of this Agreement is subject to satisfaction of the conditions
precedent that the Managing Agents shall have received the following, in form
and substance
34
satisfactory to the Managing Agents, and in sufficient copies for each Bank that
requests a copy:
(a) Certified copies of (i) appropriate resolutions of the Board of
Directors (or committee thereof) of each Loan Party approving each Loan
Document to which it is a party (as such Loan Document may be amended
through the date hereof), and (ii) all documents evidencing any other
necessary corporate action and required governmental and any third party
approvals, licenses and consents with respect to each Loan Document to
which it is a party.
(b) A copy of the certificate of incorporation of each Loan Party
certified as of a recent date by the Secretary of State of such Person's
jurisdiction of incorporation, together with certificates of such official
attesting to the good standing of such Person, and a copy of the By-Laws
of each such Person certified by its Secretary or one of its Assistant
Secretaries.
(c) A certificate of the Secretary or an Assistant Secretary of each
Loan Party certifying the names and true signatures of its officers who
have been authorized to execute and deliver each Loan Document to which it
is a party and each other document and certificate to be executed or
delivered hereunder on behalf of such Person.
(d) A favorable opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice
President and Deputy General Counsel of Viacom, in substantially the form
of Exhibit D hereto.
(e) A duly executed Subsidiary Facility.
(f) A duly executed VII Guarantee.
(g) A duly executed Parent Guarantee.
5.2. Additional Conditions Precedent to the Making of the Initial
Loans. The effectiveness of this Agreement and making of any Loans
simultaneously thereunder and thereafter is subject to the further conditions
precedent that on the date of such Loans the following statements shall be true:
(a) The Borrower shall have paid all costs, accrued and unpaid fees
and expenses referred to in Sections 4.4 and 12.4 (including, without
limitation, the legal fees and expenses referred to in Section 12.4(a)),
in each case to the extent then due and payable.
35
(b) All Indebtedness (including all theretofore accrued but unpaid
Commitment Fees and interest) of the Borrower, Viacom International and
the MSubs (as defined in the Existing Agreement) under (i) the Existing
Agreement; (ii) the $1.8 billion Credit Facility; and (iii) the Existing
Subsidiary Facility shall have been (or shall simultaneously be)
refinanced pursuant to the terms of this Agreement or the Subsidiary
Facility or otherwise been repaid.
5.3. Conditions Precedent to the Making of Each Loan. The obligation
of each Bank to make any Loan, including the initial Loans, shall be subject to
the further conditions precedent that the following statements shall be true on
the date of such Loan, before and after giving effect thereto and to the
application of the proceeds therefrom (and the acceptance by the Borrower of the
proceeds of such Loan shall constitute a representation and warranty by the
Borrower that on the date of such Loan such statements are true):
(a) The representations and warranties contained in Article VI
hereof (other than those stated to be made as of a particular date) are
true and correct in all material respects on and as of such date as though
made on and as of such date.
(b) No event has occurred and is continuing, or would result from
the Loans being made on such date, which constitutes a Default or an Event
of Default.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement, the Borrower
represents and warrants to the Banks as follows:
6.1. Corporate Existence; Compliance with Law. The Borrower, each
other Loan Party and each other Material Subsidiary (i) is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation; (ii) is duly qualified and in good standing
as a foreign corporation under the laws of each other jurisdiction in which the
failure so to qualify is reasonably probable to have a Material Adverse Effect;
(iii) has all requisite corporate power and authority to conduct its business as
now being conducted and as proposed to be conducted; (iv) is in compliance with
its articles or certificate of incorporation and by-laws; and (v) is in
compliance with all applicable Requirements of Law except such non-compliance as
would not have a Material Adverse Effect.
36
6.2. Corporate Power; Authorization; Enforceable Obligations. (a)
The execution, delivery and performance by each Loan Party of this Agreement or
any other Loan Document to which it is a party:
(i) are within its corporate powers;
(ii) have been duly authorized by all necessary corporate action;
(iii) do not (A) contravene its certificate of incorporation or
by-laws, (B) violate any law or regulation (including, without limitation,
Regulations G, T, U or X of the Board of Governors of the Federal Reserve
System), or any order or decree of any court or governmental
instrumentality, except those as to which the failure to comply would not
have a Material Adverse Effect, (C) conflict with or result in the breach
of, or constitute a default under, any instrument, document or agreement
binding upon and material to such Loan Party, or (D) result in the
creation or imposition of any Lien upon any of the Property of the
Borrower or any of its Subsidiaries; and
(iv) do not require the consent of, authorization by, approval of,
notice to, or filing or registration with, any Governmental Authority
(except for filing copies of Loan Documents with the Securities and
Exchange Commission).
(b) This Agreement and each other Loan Document has been duly
executed and delivered by each Loan Party that is a party hereto or thereto, and
is the legal, valid and binding obligation of each such Person, enforceable
against it in accordance with its terms, except where such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or equitable principles
relating to enforceability.
6.3. Taxes. All federal, and all material state, local and foreign
tax returns, reports and statements required to be filed by the Borrower or any
of its Subsidiaries have been filed with the appropriate governmental agencies
in all jurisdictions in which such returns, reports and statements are required
to be filed. All consolidated, combined or unitary returns which include the
Borrower or any of its Subsidiaries have been filed with the appropriate
governmental agencies in all jurisdictions in which such returns, reports and
statements are required to be filed except where such filing is being contested
or may be contested. All federal, and all material state, local and foreign
taxes, charges and other impositions of the Borrower, its Subsidiaries or any
consolidated, combined or unitary group which includes the Borrower or any of
its Subsidiaries which are due and payable have been timely paid prior to the
date on which any fine, penalty, interest, late charge or loss may be added
thereto for non-payment thereof except where contested in good faith and by
appropriate
37
proceedings if adequate reserves therefor have been established on the books of
the Borrower or such Subsidiary in accordance with GAAP. Proper and accurate
amounts have been withheld by or on behalf of the Borrower and each of its
Subsidiaries from their respective employees for all periods in full and
complete compliance with the tax, social security and unemployment withholding
provisions of applicable federal, state, local and foreign law and such
withholdings have been timely paid to the respective governmental agencies, in
all material respects. Neither the Borrower nor any of its Tax Affiliates has
agreed or has been requested to make any adjustment under Section 481(a) of the
Code by reason of a change in accounting method or otherwise relating to the
Borrower or any of its Subsidiaries which will affect a taxable year of the
Borrower or a Tax Affiliate ending after December 31, 1995, which has not been
reflected in the financial statements delivered pursuant to Section 8.8 and
which would have a Material Adverse Effect. The Borrower has no obligation under
any tax sharing agreement or other tax sharing arrangement, other than the Tax
Sharing Agreement and tax sharing agreements or other tax sharing arrangements
providing for payments to Subsidiaries of the Borrower which are Tax Affiliates,
which do not have a Material Adverse Effect.
6.4. Financial Information. (a) The reports of the Borrower on Form
10-K for the Fiscal Year ended December 31, 1995 and on Form 10-Q for the Fiscal
Quarter ended September 30, 1996 are respectively complete and correct in all
material respects as of such respective dates, and the financial statements
therein have been prepared in accordance with GAAP and fairly present the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries as of such respective dates (subject, in the case of
such reports on Form 10-Q, to changes resulting from normal year-end
adjustments).
(b) Since September 30, 1996, there has been no Material Adverse
Change or Material Credit Agreement Change.
(c) None of the Borrower or any Subsidiary of the Borrower had at
September 30, 1996 any obligation, contingent liability, or liability for taxes
or long-term leases material to the Borrower and its Subsidiaries taken as a
whole which is not reflected in the balance sheets referred to in subsection (a)
above or in the notes thereto.
6.5. Litigation. There are no pending, or to the best knowledge of
the Borrower threatened, actions, investigations or proceedings against or
affecting the Borrower or any of its Subsidiaries before any court, governmental
agency or arbitrator in which, individually or in the aggregate, there is a
reasonable probability of an adverse decision that could have a Material Adverse
Effect or result in a Material Credit Agreement Change.
38
6.6. Margin Regulations. The Borrower is not engaged in the business
of extending credit for the purpose of purchasing or carrying Margin Stock, and
no proceeds of any Borrowing will be used to purchase or carry any Margin Stock
or to extend credit to others for the purpose of purchasing or carrying any
Margin Stock in violation of Regulation U.
6.7. ERISA. (a) No liability under Sections 4062, 4063, 4064 or 4069
of ERISA has been or is expected by the Borrower to be incurred by the Borrower
or any ERISA Affiliate with respect to any Plan which is a Single-Employer Plan
in an amount that could reasonably be expected to have a Material Adverse
Effect.
(b) No Plan which is a Single-Employer Plan had an accumulated
funding deficiency, whether or not waived, as of the last day of the most recent
fiscal year of such Plan ended prior to the date hereof. Neither the Borrower
nor any ERISA Affiliate is (A) required to give security to any Plan which is a
Single-Employer Plan pursuant to Section 401(a)(29) of the Code or Section 307
of ERISA, or (B) subject to a Lien in favor of such a Plan under Section 302(f)
of ERISA.
(c) Each Plan of the Borrower, each of its Subsidiaries and each of
its ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the Code, except where the failure to comply
would not result in any Material Adverse Effect.
(d) Neither the Borrower nor any of its Subsidiaries has incurred a
tax liability under Section 4975 of the Code or a penalty under Section 502(i)
of ERISA in respect of any Plan which has not been paid in full, except where
the incurrence of such tax or penalty would not result in a Material Adverse
Effect.
(e) None of the Borrower, any of its Subsidiaries or any ERISA
Affiliate has incurred or reasonably expects to incur any Withdrawal Liability
under Section 4201 of ERISA as a result of a complete or partial withdrawal from
a Multiemployer Plan which will result in Withdrawal Liability to the Borrower,
any of its Subsidiaries or any ERISA Affiliate in an amount that could
reasonably be expected to have a Material Adverse Effect.
6.8. No Defaults. Neither the Borrower nor any of its Subsidiaries
is in breach of or default under or with respect to any instrument, document or
agreement binding upon the Borrower or such Subsidiary which breach or default
is reasonably probable to have a Material Adverse Effect or result in the
creation of a Lien on any Property of the Borrower or its Subsidiaries.
39
6.9. Investment Company Act. The Borrower is not an "investment
company" or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended. The making of the Loans by the Banks, the
application of the proceeds and repayment thereof by the Borrower and the
consummation of the transactions contemplated by this Agreement will not violate
any provision of such act or any rule, regulation or order issued by the
Securities and Exchange Commission thereunder.
6.10. Insurance. All policies of insurance of any kind or nature
owned by the Borrower and its Subsidiaries are maintained with financially sound
and reputable insurers. The Borrower currently maintains insurance with respect
to its Properties and business and causes its Subsidiaries to maintain insurance
with respect to their Properties and business against loss or damage of the
kinds customarily insured against by corporations engaged in the same or similar
business and similarly situated, of such types and in such amounts as are
customarily carried under similar circumstances by such other corporations
including, without limitation, workers' compensation insurance.
6.11. Environmental Protection. (a) There are no known conditions or
circumstances associated with the currently or previously owned or leased
properties or operations of the Borrower or its Subsidiaries or tenants which
may give rise to any Environmental Liabilities and Costs which would have a
Material Adverse Effect; and
(b) No Environmental Lien has attached to any Property of the
Borrower or any of its Subsidiaries which would have a Material Adverse Effect.
6.12. Title and Liens. Each of the Borrower and each of its
Subsidiaries has good and marketable title to its real properties and owns or
leases under Capitalized Leases all its other material Properties, in each case,
as shown on its most recent balance sheet, and none of such Properties is
subject to any Lien except as permitted under this Agreement.
6.13. Trademarks, Copyrights, Etc. The Borrower and each of its
Subsidiaries own or have the rights to such trademarks, service marks, trade
names, copyrights, licenses or rights in any thereof, as in the aggregate are
adequate in the reasonable judgment of the Borrower for the conduct of the
business of the Borrower and its Subsidiaries as now conducted.
6.14. FCC Licenses. The Borrower and its Subsidiaries have all the
FCC Licenses necessary for the conduct of their respective businesses as now
being conducted. The Borrower and its Subsidiaries are in substantial compliance
with the Federal Communications Act of 1934, as amended, and with the rules and
regulations thereunder
40
except for such non-compliance which would not have a Material Adverse Effect.
Neither the Borrower nor any of its Subsidiaries is a party to, nor has any
knowledge of, any investigation, notice of violation, order or complaint issued
by or before the FCC, in which there is a reasonable probability of an adverse
decision which is reasonably probable to have a Material Adverse Effect. The
operation and maintenance of the towers and any antenna systems relating to each
of the broadcast Properties owned by the Borrower and its Subsidiaries or used
in connection with the transmission of signals therefrom do not violate any
Requirement of Law except for such non-compliance which would not have a
Material Adverse Effect. The Borrower and its Subsidiaries have no reason to
believe that any FCC License of the Borrower and its Subsidiaries will not be
renewed in the ordinary course except for such nonrenewal which would not have a
Material Adverse Effect.
6.15. Disclosure. All written information relating to the Borrower
and its Subsidiaries which has been delivered to the Banks in connection with
the Loan Documents prior to the Initial Funding Date was complete and correct in
all material respects, taken as a whole. Any financial projections and other
information regarding anticipated future plans or developments contained therein
was based upon good faith estimates and assumptions believed by the Borrower to
be reasonable at the time made, it being recognized by the Banks that such
projections and other information regarding future events are not to be viewed
as facts and that actual results or developments during the period or periods
covered may differ from the delivered projections and other prospective
information.
ARTICLE VII
FINANCIAL COVENANTS
As long as any of the Loans shall remain unpaid or any Bank shall
have any Commitment hereunder, unless otherwise agreed by the written consent of
the Majority Banks:
7.1. Total Leverage Ratio. The Total Leverage Ratio shall not
exceed, as of the last day of any Fiscal Quarter described below, the amount
specified with respect to such period:
Date Ratio
---- -----
Through December 31, 1997 5.25x
March 31, 1998 through 4.50x
December 31, 1998
41
Date Ratio
---- -----
March 31, 1999 and 4.00x
Thereafter
7.2. Ratio of EBIDT to Trailing Total Cash Interest and Preferred
Dividends. The ratio of EBIDT to Total Cash Interest and Preferred Dividends
shall not be less, as of the last day of any Fiscal Quarter, than 2.25x.
7.3. Minimum Net Worth. On the last day of each Fiscal Quarter, the
Net Worth of the Borrower and its Subsidiaries shall not be less than 75% of the
Net Worth of the Borrower and its Subsidiaries as of September 30, 1994.
ARTICLE VIII
AFFIRMATIVE COVENANTS
As long as any of the Loans shall remain unpaid or any Bank shall
have any Commitment hereunder, unless otherwise agreed by the written consent of
the Majority Banks:
8.1. Compliance with Laws, Etc. The Borrower shall comply, and cause
each of its Subsidiaries to comply, in all material respects with all
Requirements of Law, all FCC Licenses and Franchises except such non-compliance
as would not have a Material Adverse Effect or result in a Material Credit
Agreement Change.
8.2. Payment of Taxes, Etc. The Borrower and any consolidated,
combined or unitary group which includes the Borrower or any of its Subsidiaries
shall pay and discharge, and cause each Subsidiary of the Borrower to pay and
discharge, before the same shall become delinquent, all lawful claims, taxes,
assessments and governmental charges or levies except where contested in good
faith, by proper proceedings, and where adequate reserves therefor have been
established on the books of the Borrower or such Subsidiary in accordance with
GAAP.
8.3. Maintenance of Insurance. The Borrower shall maintain, and
cause each of its Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the Borrower or
such Subsidiary operates. The Borrower will furnish to the Administrative Agent
from time to time such information as may be requested as to such insurance.
42
8.4. Preservation of Corporate Existence, Etc. The Borrower shall
preserve and maintain, and cause each of its Subsidiaries to preserve and
maintain, their respective corporate existences; provided, however, that the
corporate existence of any Subsidiary (other than a Guarantor Subsidiary) may be
terminated if, in the good faith judgment of the board of directors or the chief
financial officer of the Borrower, such termination is in the best interest of
the Borrower and such termination would not have a Material Adverse Effect; and
provided further, however, that the Borrower may merge into Viacom
International, with Viacom International as the surviving corporation, provided
that upon the effectiveness of such merger, Viacom International shall assume,
pursuant to an instrument satisfactory to the Managing Agents, the obligations
of the Borrower hereunder and under the other Loan Documents.
8.5. Books and Access. The Borrower shall, and shall cause each of
its Subsidiaries to, keep proper books of record and accounts in conformity with
GAAP, and upon reasonable notice and at such reasonable times during the usual
business hours as often as may be reasonably requested, permit representatives
of the Administrative Agent, at its own initiative or at the request of any
Bank, to make inspections of its Properties, to examine its books, accounts and
records and make copies and memoranda thereof and to discuss its affairs and
finances with its officers or directors and independent public accountants.
8.6. Maintenance of Properties, Etc. The Borrower shall maintain and
preserve, and cause each of its Subsidiaries to maintain and preserve, all of
its Properties which are used or useful in the conduct of its business in good
working order and condition and, from time to time make or cause to be made all
appropriate repairs, renewals and replacements, except where the failure to do
so would not have a Material Adverse Effect.
8.7. Application of Proceeds. The Borrower shall use the proceeds of
the Loans (i) to refinance certain Indebtedness existing at the date hereof of
the Borrower and its Subsidiaries, (ii) to provide support for its Commercial
Paper and competitive bid programs, and (iii) for other general corporate
purposes.
8.8. Financial Statements. The Borrower shall furnish to the Banks:
(a) as soon as available but not later than sixty (60) days after
the close of each of the first three (3) Fiscal Quarters of each Fiscal Year of
the Borrower, (i) consolidated balance sheets of the Borrower and its
Subsidiaries as at the end of such Fiscal Quarter and the related consolidated
statements of operations, the consolidated statement of shareholders' equity and
the consolidated statement of cash flows of the Borrower and its Subsidiaries
for such Fiscal Quarter and (in the case of the second and third Fiscal
Quarters) for the period from the beginning of the then current Fiscal Year to
the end of
43
such Fiscal Quarter (along with business segment information customarily
prepared by the Borrower), setting forth in each case in comparative form the
consolidated figures for the corresponding periods of the previous Fiscal Year,
all in reasonable detail and certified by a Responsible Financial Officer of the
Borrower as fairly presenting, in accordance with GAAP, the financial condition
and results of operations of the Borrower and its Subsidiaries, subject to
changes resulting from normal year-end audit adjustments; and (ii) a report
certified by such Responsible Financial Officer of all commitments for program
license fees that are not reflected on the balance sheets referred to above in
excess of Fifty Million Dollars ($50,000,000) for any one such commitment or
series of related commitments incurred by the Borrower or any Subsidiary during
such Fiscal Quarter, together with a statement of all such obligations
outstanding at the end of such Fiscal Quarter;
(b) (i) as soon as available but no later than one hundred twenty
(120) days after the close of each Fiscal Year of the Borrower, (A) consolidated
balance sheets of the Borrower and its Subsidiaries as at the end of such year
and the related consolidated statements of operations, the consolidated
statement of shareholders' equity and the consolidated statement of cash flows
of the Borrower and its Subsidiaries for such year (along with business segment
information customarily prepared by the Borrower), setting forth in each case in
comparative form the consolidated figures for the previous Fiscal Year, all in
reasonable detail and certified in the case of the consolidated financial
statements by Price Waterhouse or another firm of nationally recognized
independent public accountants, which report shall state without qualification
as to the scope of the audit or as to going concern that such consolidated
financial statements present fairly the financial position and the results of
operations as at the dates and for the periods indicated in conformity with GAAP
and that the audit by such accountants in connection with such consolidated
financial statements has been made in accordance with GAAS, and (B) a report
certified by a Responsible Financial Officer of all commitments for program
license fees that are not reflected on the balance sheets referred to above in
excess of Fifty Million Dollars ($50,000,000) for any one such commitment or
series of related commitments incurred by the Borrower or any Subsidiary during
the last Fiscal Quarter of such Fiscal Year, together with a statement of all
such obligations at the end of such Fiscal Quarter; (ii) as soon as available
but not later than one hundred twenty (120) days after the close of each Fiscal
Year of the Borrower, a certificate from such accounting firm that in the course
of the regular audit of the business of the Borrower and its Subsidiaries, which
audit was conducted by such accounting firm in accordance with GAAS, such
accounting firm obtained no knowledge that an Event of Default or Default has
occurred and is continuing or, if in the opinion of such accounting firm, an
Event of Default or Default has occurred and is continuing, a statement as to
the nature thereof;
(c) together with each delivery of financial statements of the
Borrower pursuant to clauses (a) and (b) above, a certificate issued by a
Responsible Financial
44
Officer of the Borrower (i) demonstrating compliance at the end of the
accounting period described in such statements with the financial covenants
contained herein and (ii) containing in reasonable detail the component figures
contained in the respective total figures stated in such certificate; and
(d) together with each delivery of financial statements of the
Borrower and its Subsidiaries pursuant to clauses (a) or (b) above, a
certificate signed by a Responsible Financial Officer of the Borrower stating
that (i) such officer is familiar with both this Agreement and the business and
financial condition of the Borrower, and (ii) no Event of Default or Default has
occurred and is continuing or if an Event of Default or Default has occurred and
is continuing a statement as to the nature thereof, and whether or not the same
shall have been cured.
8.9. Reporting Requirements. The Borrower shall furnish to the
Administrative Agent for distribution to the Banks:
(a) from time to time as the Administrative Agent may reasonably
request, copies of such statements, lists of Property, accounts, budgets,
forecasts, reports or information prepared by or for the Borrower or within the
Borrower's control;
(b) promptly and in any event within thirty (30) days after the
Borrower, any of its Subsidiaries or any ERISA Affiliate knows that any ERISA
Event has occurred (other than a Reportable Event for which notice to the PBGC
is waived), a written statement of the chief financial officer or other
appropriate officer of the Borrower describing such ERISA Event and the action,
if any, which the Borrower, any of its Subsidiaries or any ERISA Affiliate
proposes to take with respect thereto, and a copy of any notice filed with the
PBGC or the IRS pertaining thereto;
(c) promptly and in any event within thirty (30) days after notice
or knowledge thereof, notice that the Borrower or any of its Subsidiaries
becomes subject to the tax on prohibited transactions imposed by Section 4975 of
the Code, together with a copy of Form 5330;
(d) promptly after the commencement thereof, notice of all actions,
suits and proceedings before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, against or
affecting the Borrower or any of its Subsidiaries, in which there is a
reasonable probability of an adverse decision which would have a Material
Adverse Effect;
(e) promptly upon the Borrower or any of its Subsidiaries learning
of (i) any Event of Default or any Default, or (ii) any Material Credit
Agreement Change, telephonic or telegraphic notice specifying the nature of such
Event of Default, Default or
45
Material Credit Agreement Change, including the anticipated effect thereof,
which notice shall be promptly confirmed in writing within five days;
(f) promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to its security holders generally, and copies
of all reports and registration statements which the Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission or any national
securities exchange;
(g) promptly upon, and in any event within 30 days of, the Borrower
or any of its Subsidiaries learning of any of the following:
(i) notice that any Property of the Borrower or any of its
Subsidiaries is subject to any Environmental Liens individually or in the
aggregate which would have a Material Adverse Effect;
(ii) any proposed acquisition of stock, assets or real estate, or
any proposed leasing of Property, or any other action by the Borrower or
any of its Subsidiaries in which there is a reasonable probability that
the Borrower or any of its Subsidiaries would be subject to any material
Environmental Liabilities and Costs, provided that, in the event of any
such proposed acquisition or lease, the Borrower must furnish to the Banks
evidence in a form acceptable to the Banks that the proposed acquisition
will not have a Material Adverse Effect;
(h) prior to the effectiveness thereof, information relating to any
proposed change in the accounting treatment or reporting practices of the
Borrower and its Subsidiaries the nature or scope of which materially affects
the calculation of any component of any financial covenant, standard or term
contained in this Agreement;
(i) promptly upon the Borrower learning of any material FCC License
being revoked, canceled or terminated, or renewal thereof denied for any reason,
written notice specifying the reasons for such revocation, cancellation,
termination or denial, the anticipated effect thereof, and the actions, if any,
being taken by the Borrower to remedy the same; and
(j) from time to time, such other information and materials as the
Administrative Agent may reasonably request.
46
ARTICLE IX
NEGATIVE COVENANTS
So long as any of the Loans shall remain unpaid or any Bank shall
have any Commitment hereunder, without the written consent of the Majority
Banks:
9.1. Liens, Etc. The Borrower shall not, directly or indirectly,
create or suffer to exist, or permit any of its Subsidiaries to create or suffer
to exist, any Lien upon or with respect to any of its Properties, whether now
owned or hereafter acquired, or assign, or permit any of its Subsidiaries to
assign, any right to receive income, in each case to secure or provide for the
payment of any Indebtedness of any Person, except:
(i) purchase money Liens or purchase money security interests upon
or in any Property acquired or held by the Borrower or any Subsidiary of
the Borrower in the ordinary course of business to secure the purchase
price of such Property or to secure Indebtedness incurred solely for the
purpose of financing the acquisition of such Property;
(ii) Liens existing on Property at the time of its acquisition
(other than any such Lien created in contemplation of such acquisition);
(iii) Liens on Property of Persons which become Subsidiaries after
the Original Funding Date securing Indebtedness existing, with respect to
any such Person, on the date such Person becomes a Subsidiary (other than
any such Lien created in contemplation of such Person becoming a
Subsidiary);
(iv) Liens on Property of Persons which become Subsidiaries after
the Original Funding Date securing Indebtedness incurred by such Person
after the date such Person becomes a Subsidiary; provided, however, that
the aggregate principal amount of Indebtedness referred to in this clause
(iv) secured by Liens shall not exceed $30,000,000 at any time
outstanding;
(v) any Lien securing the renewal, extension or refunding of any
Indebtedness secured by any Lien permitted by clause (i), (ii), (iii) or
(iv) above.
9.2. Mergers. The Borrower shall not, nor shall it permit any of its
Subsidiaries representing a substantial portion of the assets of the Borrower
and its Subsidiaries taken as a whole to, merge or consolidate in any
transaction in which such entity is not the surviving Person other than: (i) in
mergers of any Subsidiary into the Borrower or any other wholly owned Subsidiary
of the Borrower; or (ii) in a merger of the Borrower into Viacom International
with Viacom International as the surviving
47
corporation, provided that upon the effectiveness of such merger, Viacom
International shall assume, pursuant to an instrument satisfactory to the
Managing Agents, the obligations of the Borrower hereunder and under the other
Loan Documents.
9.3. Substantial Asset Sale. The Borrower shall not, and shall not
permit any of its Subsidiaries to, sell assets constituting all or a substantial
portion of consolidated assets of the Borrower and its Subsidiaries taken as a
whole to any Person other than to the Borrower or its wholly owned Subsidiary.
9.4. Transactions with Affiliates. The Borrower shall not engage in,
and will not permit any of its Subsidiaries to engage in, any transaction with
an Affiliate of the Borrower or of such Subsidiary (other than transactions in
the ordinary course of business between a Subsidiary and its parent or among
Subsidiaries of the Borrower) except on terms no less favorable to the Borrower
or such Subsidiaries than as would be obtained in a comparable arm's-length
transaction.
9.5. Margin Stock. The Borrower shall not permit more than
twenty-five percent (25%) of the value, within the meaning of Regulation U, as
determined by any reasonable method, of the assets of the Borrower and its
Subsidiaries, or of the Guarantor Subsidiary, to be Margin Stock, nor will the
Borrower use the proceeds of any Loan to purchase or carry any Margin Stock in
violation of Regulation U.
9.6. Subsidiary Indebtedness. The Borrower shall not permit any of
its Subsidiaries, other than the Guarantor Subsidiary, to incur Indebtedness for
borrowed money other than (a) the Subsidiary Loans (as defined in the Subsidiary
Facility), (b) under existing facilities identified on Schedule 9.6 to this
Agreement or any replacement facilities thereto which in the aggregate do not
exceed the amounts of the commitments on such Schedule and (c) Indebtedness for
borrowed money in an aggregate amount at any time outstanding of not more than
$500 million; provided, however, the aggregate amount of Indebtedness for
borrowed money scheduled to mature earlier than six months after the Commitment
Termination Date at any time permitted to be outstanding under Section 9.6(c)
and Section 9.7(b) may not exceed $500 million.
9.7. Other Restrictions on Indebtedness. The Borrower shall not, and
shall not permit the Guarantor Subsidiary to, incur Indebtedness for borrowed
money maturing earlier than six months after the Commitment Termination Date
other than (a) Commercial Paper and (b) up to $500 million at any time
outstanding (less the aggregate amount outstanding under Section 9.6(c)
scheduled to mature earlier than six months after the Commitment Termination
Date) and on terms no more onerous than the terms hereof.
48
ARTICLE X
EVENTS OF DEFAULT
10.1. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) The Borrower or any other Loan Party shall fail to pay (i) any
principal when due in accordance with the terms and provisions of this
Agreement or any other Loan Document, or (ii) any interest on any amounts
due hereunder or thereunder, or any fee or any other amount due hereunder
or thereunder within three Business Days after the same becomes due and
payable; or
(b) Any representation or warranty made by any Loan Party in this
Agreement or any other Loan Document or by any Loan Party (or any of its
officers) in connection with this Agreement or any other Loan Document
shall prove to have been incorrect in any material respect when made; or
(c) Any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in this Agreement or any other Loan
Document, which failure or change shall remain unremedied for fifteen days
after the earlier of the date on which (i) telephonic or telegraphic
notice thereof shall have been given to the Administrative Agent by the
Borrower pursuant to Section 8.9(e), or (ii) written notice thereof shall
have been given to the Borrower by the Administrative Agent or any Bank;
or
(d) The Borrower or any of its Subsidiaries shall fail to pay any
principal of, or premium or interest on, any Indebtedness in an aggregate
principal amount of $50,000,000 or more (excluding Indebtedness hereunder)
of the Borrower or such Subsidiary, when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise); or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Indebtedness, if
the effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness or to terminate any
commitment to lend; or any such Indebtedness shall be declared to be due
and payable, or required to be prepaid (other than by a regularly
scheduled required prepayment), prior to the stated maturity thereof and,
with respect to all of the foregoing, after the expiration of any
applicable grace period or the giving of any required notice or both;
provided, however, that no extension of any grace period applicable to any
such Indebtedness shall be taken into account for the purposes of this
subsection (d); or
49
(e) There shall occur and be continuing an Event of Default under
(and as defined in) the Subsidiary Facility; or
(f) The Borrower or any of its Material Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors, or any proceedings shall be instituted by or
against the Borrower or any of its Material Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee or other
similar official for it or for a material part of its Property employed in
its business or any writ, attachment, execution or similar process shall
be issued or levied against a material part of the Property employed in
the business of the Borrower and its Subsidiaries taken as a whole, and,
in the case of any such proceedings instituted against the Borrower or any
of its Material Subsidiaries (but not instituted by it), either such
proceedings shall remain undismissed or unstayed for a period of 60 days
or any of the actions sought in such proceedings shall occur; or the
Borrower or any of its Material Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this subsection
(f); or
(g) Any order for the payment of money or judgment of any court, not
appealable or not subject to certiorari or appeal (a "Final Judgment"),
which, with other outstanding Final Judgments, exceeds an aggregate of
$50,000,000 shall be rendered against the Borrower or any of its Material
Subsidiaries and, within 60 days after entry thereof, such Final Judgment
shall not have been discharged; or
(h) (i) With respect to any Plan, a final determination is made that
a prohibited transaction within the meaning of Section 4975 of the Code or
Section 406 of ERISA occurred which results in direct or indirect
liability of the Borrower or any of its Material Subsidiaries, (ii) with
respect to any Title IV Plan, the filing of a notice to voluntarily
terminate any such plan in a distress termination, (iii) with respect to
any Multiemployer Plan, the Borrower, any of its Material Subsidiaries or
any of its or their ERISA Affiliates shall incur any Withdrawal Liability,
or (iv) with respect to any Qualified Plan, the Borrower, any of its
Material Subsidiaries or any of its or their ERISA Affiliates shall incur
an accumulated funding deficiency or request a funding waiver from the
IRS; provided, however, that the events listed in clauses (i)-(iv) hereof
shall constitute Events of Default only if the liability, deficiency or
waiver request of the Borrower, any of its Material Subsidiaries or any of
its or their ERISA Affiliates, as finally determined, exceeds $25,000,000
in any case set forth in clauses (i)-(iv)
50
above, or exceeds $25,000,000 in the aggregate for all such cases; and,
provided further, however, that with respect to the events listed in
clauses (i), (iii) and (iv) hereof there shall be no Event of Default if
the liability of the Borrower, the relevant Material Subsidiary or the
relevant ERISA Affiliate is satisfied in full or in accordance with the
due dates therefor; or
(i) (i) NAI shall fail to own of record and beneficially not less
than 51% of the outstanding stock having ordinary voting power to elect a
majority of the board of directors of the Borrower and such failure of NAI
shall remain unremedied for fifteen days after the earlier of the date on
which (A) telephonic or telegraphic notice thereof shall have been given
to the Administrative Agent by the Borrower pursuant to Section 8.9(e), or
(B) written notice thereof shall have been given to the Borrower by the
Administrative Agent or any Bank; or
(j) This Agreement or any other Loan Document shall cease to be
valid or enforceable for any reason in any material respect;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Banks, by notice to the Borrower,
declare the obligation of each Bank to make Loans to be terminated, whereupon
the same shall forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Majority Banks, by notice to the Borrower, declare all
amounts due under this Agreement and all interest thereon to be forthwith due
and payable, whereupon all amounts due under this Agreement and all such
interest and all such amounts shall become and be forthwith due and payable;
provided, however, that upon an actual or deemed entry of an order for relief
with respect to the Borrower or any of its Material Subsidiaries under the
federal Bankruptcy Code, (A) the obligation of each Bank to make Loans shall
automatically be terminated and (B) all amounts due under this Agreement and all
such interest and all such amounts shall automatically and without further
notice become and be due and payable. In addition to the remedies set forth
above, the Administrative Agent may exercise any other remedies provided for by
this Agreement in accordance with the terms hereof or any other remedies
provided by applicable law.
ARTICLE XI
THE MANAGING AGENTS AND THE FACILITY AGENTS
11.1. Authorization and Action. Each Bank hereby appoints and
authorizes each Facility Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to such Facility
Agent by the terms hereof, together with such powers as are reasonably
incidental thereto. As to any matters
51
not expressly provided for by this Agreement, no Facility Agent shall be
required to exercise any discretion or take any action, but each shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority Banks
(or when expressly required hereunder, all the Banks), and such instructions
shall be binding upon all Banks; provided, however, that no Facility Agent shall
be required to take any action that exposes such Facility Agent to personal
liability or that is contrary to this Agreement or applicable law. Each Facility
Agent agrees to give to each Bank prompt notice of each notice given to it by
the Borrower pursuant to the terms of this Agreement.
11.2. Managing Agents' and Facility Agents' Reliance, Etc. Neither
the Managing Agents, the Facility Agents, their Affiliates nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by any of them under or in connection with
this Agreement, except for its own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, (i) any Managing Agent or
Facility Agent may consult with legal counsel (including counsel to the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (ii)
neither the Managing Agents nor the Facility Agents make any warranty or
representation to any Bank and none of them shall be responsible to any Bank for
any statements, warranties or representations made in or in connection with this
Agreement; (iii) neither the Managing Agents nor the Facility Agents shall have
any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of this Agreement on the part of the
Borrower or to inspect the Properties (including the books and records) of the
Borrower; (iv) neither the Managing Agents nor the Facility Agents shall be
responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; and (v) neither the Managing
Agents nor the Facility Agents shall incur liability under or in respect of this
Agreement by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telegram, cable or telex) believed by it to be genuine
and signed or sent by the proper party or parties. Neither the Agents nor the
Co-Agents shall, in their respective capacities as such, have any duties under
this Agreement other than those that they have in their capacities as Banks.
11.3. The Bank of New York, Citibank, N.A., ▇▇▇▇▇▇ Guaranty Trust
Company of New York, Bank of America NT&SA, The Chase Manhattan Bank and their
Affiliates. With respect to the Commitments of The Bank of New York, Citibank,
N.A., ▇▇▇▇▇▇ Guaranty Trust Company of New York, Bank of America NT&SA and The
Chase Manhattan Bank, respectively, and the Loans made by each of them, each of
The Bank of New York, Citibank, N.A., ▇▇▇▇▇▇ Guaranty Trust Company of New York,
52
Bank of America NT&SA and The Chase Manhattan Bank shall have the same rights
and powers under this Agreement as any other Bank and may exercise the same as
though it were not a Managing Agent or Facility Agent, as the case may be; and
the term "Bank" or "Banks" shall, unless otherwise expressly indicated, include
each of The Bank of New York, Citibank, N.A., ▇▇▇▇▇▇ Guaranty Trust Company of
New York, Bank of America NT&SA, and The Chase Manhattan Bank in their
individual capacities. Each of The Bank of New York, Citibank, N.A., ▇▇▇▇▇▇
Guaranty Trust Company of New York, Bank of America NT&SA, The Chase Manhattan
Bank and their Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, and generally engage in any kind of business with,
the Borrower, any of its Subsidiaries and any Person who may do business with or
own securities of the Borrower or any such Subsidiary, all as if The Bank of New
York, Citibank, N.A., ▇▇▇▇▇▇ Guaranty Trust Company of New York, Bank of America
NT&SA or The Chase Manhattan Bank, as the case may be, were not a Managing Agent
or Facility Agent, as the case may be, and without any duty to account therefor
to the Banks.
11.4. Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Managing Agents, the Facility
Agents, the Arrangers, the Agents, the Co-Agents or any other Bank, and based on
the financial statements referred to in Article VII and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Managing Agents, the Facility
Agents, the Arrangers, the Agents, the Co-Agents or any other Bank 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.
11.5. Determinations Under Sections 5.1, 5.2 and 5.3. For purposes
of determining compliance with the conditions specified in Sections 5.1, 5.2 and
5.3, each Bank shall be deemed to have consented to, approved or accepted, or to
be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Banks unless an
officer of the Administrative Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Bank prior
to the applicable Borrowing specifying its objection thereto (unless such
objection shall have been withdrawn by notice to the Administrative Agent to
that effect or such Bank shall have made available to the Administrative Agent
such Bank's ratable portion of such Borrowing).
11.6. Indemnification. Each Bank agrees to indemnify the Managing
Agents, the Facility Agents, the Arrangers and their respective Affiliates, and
their respective directors, officers, employees, agents and advisors (to the
extent not reimbursed by the Borrower), ratably according to such Bank's Ratable
Portion of the
53
Commitments, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
(including, without limitation, fees and disbursements of legal counsel) of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against, any such Person in any way relating to or arising out of this Agreement
or any action taken or omitted by any such Person under this Agreement;
provided, however, that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from any such Person's gross
negligence or willful misconduct or from any violation or alleged violation by
any such Person or any other Bank of any law, rule or regulation or any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law) or, with respect to any Managing Agent
or Facility Agent, any conflict or alleged conflict between its rights and
duties in its capacity as such or as a Bank under this Agreement and any other
rights or duties it may have in any other capacity in which it may act in
connection with the consummation of the transactions contemplated by this
Agreement, whether or not such Bank is a party to such transactions. Without
limitation of the foregoing, each Bank agrees to reimburse any such Person
promptly upon demand for its ratable share of any out-of-pocket expenses
(including fees and disbursements of one counsel) incurred by such Person in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that such Person is not
reimbursed for such expenses by the Borrower.
11.7. Successor Facility Agents. Any Facility Agent may resign at
any time by giving written notice thereof to the Banks and the Borrower and may
be removed at any time with or without cause by the Majority Banks. Upon any
such resignation or removal, the Majority Banks shall have the right to appoint
a successor to such Facility Agent. If no successor to such Facility Agent shall
have been so appointed by the Majority Banks, and shall have accepted such
appointment, within 30 days after retiring Facility Agent's giving of notice of
resignation or the Majority Banks' removal of such retiring Facility Agent, then
such retiring Facility Agent on behalf of the Banks, shall appoint a successor
Facility Agent (which successor Facility Agent shall be a Bank or another
commercial bank organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$50,000,000). Upon the acceptance of any appointment as a Facility Agent
hereunder by any successor Facility Agent, such successor Facility Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Facility Agent, and such retiring Facility Agent
shall be discharged from its duties and obligations under this Agreement. After
any retiring Facility Agent's resignation or removal hereunder, the provisions
of this Article XII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Facility Agent.
54
ARTICLE XII
MISCELLANEOUS
12.1. Amendments, Etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Majority Banks, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing signed by
all the Banks and consented to by all of the Banks as defined under the
Subsidiary Facility, do any of the following: (a) waive any of the conditions
specified in Section 5.1, 5.2 or 5.3; (b) increase the Commitments of the Banks
or subject the Banks to any additional obligations; (c) change the principal of,
or decrease the interest on, any amounts payable hereunder (or pursuant to the
VII Guarantee) or reduce the amount of any Commitment Fee payable to the Banks
hereunder (or pursuant to the VII Guarantee); (d) postpone any date fixed for
any scheduled payment of any Commitment Fee, or scheduled payment of principal
of, or interest on, any amounts, payable hereunder (or pursuant to the VII
Guarantee); (e) change the definition of Majority Banks; (f) amend this Section
12.1; or (g) amend Section 9.6; and provided further, however, that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Persons required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement.
12.2. Notices, Etc. Except as otherwise set forth herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopy or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered by hand, if to the
Borrower, at its address at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Treasurer; if to any Bank, at its Domestic Lending Office specified opposite its
name on Schedule I; and if to the Administrative Agent, at its address at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ 6, New York, New York 10043, Attention: ▇▇▇▇▇
▇▇▇▇▇; or, as to the Borrower, any Bank or the Administrative Agent, at such
other address as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, cabled or delivered, be effective when
deposited in the mails, delivered to the telegraph company, confirmed by telex
answerback, telecopied with confirmation of receipt, delivered to the cable
company or delivered by hand to the addressee or its agent, respectively, except
that notices and communications to the Administrative Agent pursuant to Article
II, III, IV or XII shall not be effective until received by the Administrative
Agent.
55
12.3. No Waiver; Remedies. No failure on the part of any Bank, the
Managing Agents or any Facility Agent to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
12.4. Costs; Expenses; Indemnities. (a) The Borrower agrees to pay
on demand all costs and expenses in connection with the preparation, execution,
delivery, administration, modification and amendment of this Agreement, the
other Loan Documents and the other documents to be delivered hereunder or
thereunder, including, without limitation, the specified reasonable fees and
out-of-pocket expenses of one counsel to the Managing Agents and the Facility
Agents and the Arrangers with respect thereto and with respect to advising the
Managing Agents, the Facility Agents and the Arrangers as to their rights and
responsibilities under this Agreement, and all costs and expenses of the
Managing Agents, the Facility Agents and the Banks (including, without
limitation, reasonable counsel fees and expenses) in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the other Loan Documents and the other documents to be delivered
hereunder and thereunder.
(b) The Borrower agrees to defend, indemnify and hold harmless each
of the Managing Agents, the Facility Agents, the Arrangers and the Banks and
their respective affiliates and their respective directors, officers, attorneys,
agents, employees, successors and assigns (each, an "Indemnified Person") from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, claims, judgments, suits, costs, expenses and disbursements of any kind
or nature whatsoever (including, without limitation, fees and disbursements of
counsel of the Managing Agents, the Facility Agents, the Arrangers or the Banks)
which may be incurred by or asserted or awarded against any Indemnified Person,
in each case arising in any manner of or in connection with or by reason of the
Merger, the Merger Agreement, the Tender Offer, this Agreement, the other Loan
Documents, the Commitments or any undertakings in connection therewith, or the
proposed or actual application of the proceeds of the Loans (all of the
foregoing collectively, the "Indemnified Liabilities") and will reimburse each
Indemnified Person on a current basis for all expenses (including counsel fees
as they are incurred by such party) in connection with investigating, preparing
or defending any such action, claim or suit, whether or not in connection with
pending or threatened litigation irrespective of whether such Indemnified Person
is designated a party thereto; provided that the Borrower shall not have any
liability hereunder to any Indemnified Person with respect to Indemnified
Liabilities which are determined by a final and nonappealable judgment of a
court of competent jurisdiction to have arisen primarily from the gross
negligence or willful misconduct of such Indemnified Person; and provided
further, that
56
if the Borrower has determined in good faith that such Indemnified Liabilities
were primarily the result of such Indemnified Person's gross negligence or
willful misconduct, it shall not be obligated to pay such Indemnified
Liabilities until a court of competent jurisdiction has determined whether such
Indemnified Person acted with gross negligence or willful misconduct. If for any
reason the foregoing indemnification is unavailable to an Indemnified Person or
insufficient to hold an Indemnified Person harmless, then the Borrower shall
contribute to the amount paid or payable by such Indemnified Person as a result
of any Indemnified Liability in such proportion as is appropriate to reflect not
only the relative benefits received by the Borrower and each Managing Agent,
each Facility Agent, each Arranger and each Bank, but also the relative fault of
the Borrower and each Managing Agent, each Facility Agent, each Arranger and
each Bank, as well as any other relevant equitable considerations. The foregoing
indemnity shall be in addition to any rights that any Indemnified Person may
have at common law or otherwise, including, but not limited to, any right to
contribution.
(c) If any Bank receives any payment of principal of, or is subject
to a conversion of, any Eurodollar Rate Loan other than on the last day of an
Interest Period relating to such Loan, as a result of any payment or conversion
made by the Borrower or acceleration of the maturity of the amounts due under
this Agreement pursuant to Section 10.1 or for any other reason, the Borrower
shall, upon demand by such Bank (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Bank any amounts required to compensate such Bank for any additional losses,
costs or expenses which it may reasonably incur as a result of such payment or
conversion, including, without limitation, any loss (excluding loss of the
margin payable in accordance with Section 4.2 on the amount of principal so
paid, or any loss), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Bank to fund or
maintain such Loan. The foregoing obligations of the Borrower contained in
paragraphs (a), (b) and (c) of this Section 12.4, and the obligations of the
Borrower contained in Sections 4.5(b) and 4.7, shall survive the payment of the
Loans.
12.5. Right of Set-Off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 10.1 to authorize the
Administrative Agent to declare all amounts under this Agreement due and payable
pursuant to the provisions of Section 10.1 or the automatic acceleration of such
amounts pursuant to the proviso to that Section, each Bank 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 Bank to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement irrespective of whether or not such Bank shall have made any demand
under this Agreement and
57
although such obligations may be unmatured. Each Bank agrees promptly to notify
the Borrower after any such set-off and application made by such Bank; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Bank under this Section 12.5
are in addition to any other rights and remedies (including, without limitation,
any other rights of set-off) which such Bank may have.
12.6. Binding Effect. Subject to Article V hereunder, this Agreement
shall become effective when it shall have been executed by the Borrower, each of
the Managing Agents, each of the Facility Agents and each of the Arrangers and
when the Managing Agents shall have been notified by each of the Banks that such
Bank has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrower, each of the Managing Agents, each of the Facility
Agents, each of the Arrangers and each of the Banks and their respective
successors and assigns, except that (i) the Borrower shall have no right to
assign its rights or obligations hereunder or any interest herein (and any such
purported assignment shall be void) without the prior consent of the Banks
except in connection with any (x) merger or consolidation permitted under
Section 9.2 or (y) merger, consolidation or sale of assets consented to by the
Majority Banks, and (ii) no Bank may sell, transfer, assign, pledge or grant
participations in any of its Loans or any of its rights or obligations hereunder
except in accordance with Section 12.7 or as expressly required hereunder.
12.7. Assignments and Participations; Additional Banks. (a) Any Bank
may, at any time, by notice substantially in the form of Exhibit E hereto (each,
a "Notice of Assignment and Acceptance") delivered to the Administrative Agent
for its acceptance and recording, together with a recording fee in the amount of
$3,000, assign all or any part of its rights and obligations and delegate its
duties under this Agreement (A) to any other Bank or any affiliate of any Bank
which actually controls, is controlled by, or is under common control with such
Bank or to any Federal Reserve Bank (in either case without limitation as to
amount), or (B) with the prior consent of the Borrower (such consent not to be
unreasonably withheld), to any other Person (but if in part, in a minimum amount
of $25,000,000 or, if less, the balance of such Bank's Revolving Loan Commitment
and the Term Loan Commitment); provided, however, that each assigning Bank must
assign an identical percentage of a Loan and its related Commitment and, in the
case of any assignment of a Term Loan and the related Commitment, a uniform, and
not a varying, percentage of each of its Term Loans and Term Loan Commitment and
Subsidiary Loans and Subsidiary Loan Commitments under the Subsidiary Facility.
(b) Any Bank may at any time sell or grant participations in its
Commitment, or the obligations owing to or from any Person existing under this
Agreement; provided, however, that (i) as between such Bank and the Borrower,
the existence of such participations shall not give rise to any direct rights or
obligations
58
between the Borrower and the participants; (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such obligations;
(iii) the Borrower, the Managing Agents, the Facility Agents and the other Banks
shall continue to deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement; and (iv) no such sale
or grant of a participation shall, without the consent of the Borrower, require
the Borrower to file a registration statement with the Securities and Exchange
Commission or apply to qualify the Commitments or the Loans under the securities
laws of any state.
(c) If an assignment is made by any Bank in accordance with the
provisions of paragraph (a) above, upon acceptance and recording by the
Administrative Agent, and approval by the Borrower, where applicable, of each
Notice of Assignment and Acceptance, (i) the assignee thereunder shall become a
party to this Agreement and the Borrower shall release and discharge the
assigning Bank from its duties, liabilities or obligations under this Agreement
to the extent the same are so assigned and delegated by such Bank, provided that
no such consent, release or discharge shall have effect until the Borrower shall
have received a fully executed copy of the Notice of Assignment and Acceptance
relating to such assignment and (ii) Schedule II shall be deemed amended to give
effect to such assignment. The Borrower agrees that each such disposition will
give rise to a direct obligation of the Borrower to any such assignee.
(d) The Borrower authorizes each Bank to disclose to any prospective
assignee or participant and any assignee or participant any and all financial
information in such Bank's possession concerning the Borrower and this
Agreement; provided, however, that, prior to any such disclosure, the assignee
or participant or proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information relating to the Borrower
received by it from such Bank in accordance with Section 12.10.
(e) Any Bank which sells or grants participations in any Loans or
its Commitment may not grant to the participants the right to vote other than on
amendments, consents, waivers, modifications or other actions which change the
principal amount of, postpone the scheduled maturity of, or decrease the
interest rates applicable to, any Loans under, or increase the amount of, such
Commitment (except with respect to participating Affiliates actually controlled
by, controlling or under common control with, such Bank); provided, however,
that as between the Bank and the Borrower, only the Bank shall be entitled to
cast such votes.
(f) No participant in any Bank's rights or obligations shall be
entitled to receive any greater payment under Section 4.5 or 4.7 than such Bank
would have been entitled to receive with respect to the rights participated, and
no participation shall be sold or granted to any Person as to which the events
specified in Section 4.6 have occurred on or before the date of participation.
59
(g) The Administrative Agent shall maintain at its address referred
to in Section 12.2 a copy of each Notice of Assignment and Acceptance received
by it and a register, containing the terms of each Notice of Assignment and
Acceptance, for the recordation of the names and addresses of each Bank and the
Commitment of, and principal amount of the Loans owing to, each Bank from time
to time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the Banks,
the Facility Agents and the Managing Agents may treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes of this Agreement.
The Register shall be available for inspection by the Borrower, any Bank, any
Facility Agent or any Managing Agent at any reasonable time and from time to
time upon reasonable prior notice.
12.8. GOVERNING LAW; SEVERABILITY. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. WHEREVER POSSIBLE, EACH
PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED IN SUCH MANNER AS TO BE
EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS AGREEMENT
SHALL BE PROHIBITED BY OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE
INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT
INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS
AGREEMENT.
12.9. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY DOCUMENT RELATED HERETO MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVE ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH ANY OF THEM MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH
RESPECTIVE JURISDICTIONS.
(b) The Borrower irrevocably consents to the service of process of
any of the aforementioned courts in any such action or proceeding by the mailing
of copies
60
thereof by registered or certified mail, postage prepaid, to the Borrower at its
address specified for notices in or pursuant to Section 12.2 hereof, such
service to become effective 30 days after such mailing.
(c) Nothing contained in this Section 12.9 shall affect the right of
any Managing Agent, any Facility Agent or any Bank to serve process in any other
manner permitted by law or commence legal proceedings or otherwise proceed
against the Borrower in any other jurisdiction.
(d) Each of the parties hereto waives any right it may have to trial
by jury in any proceeding arising out of this Agreement.
12.10. Confidentiality. Each Bank, each Managing Agent and each
Facility Agent agrees to keep confidential information obtained by it pursuant
hereto (or otherwise obtained from the Borrower in connection with this
Agreement) confidential in accordance with such Person's customary practices and
agrees that it will only use such information in connection with the
transactions contemplated by this Agreement and not disclose any of such
information other than (i) to such Person's employees, counsel, representatives
and agents who are or are expected to be involved in the evaluation of such
information in connection with the transactions contemplated by this Agreement
and who in each case agree to be bound by the provisions of this sentence, (ii)
to the extent that disclosure by such Person is required, or to the extent that
such Person has been advised by counsel that disclosure is required, in order to
comply with any law, regulation or judicial order or requested or required by
bank regulators or auditors or other Governmental Authority, (iii) to assignees
or participants of the Loans or Commitments or potential assignees or
participants of the Loans or Commitments who in each case agree in writing to be
bound by the provisions of this sentence or (iv) to the extent that such
information has otherwise been disclosed or made public other than by such
Person, or such Person's employees, counsel, representatives or agents, in
violation of this Section 12.10.
12.11. Section Titles. The Section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
12.12. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
61
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed as of the date first above written.
VIACOM INC., as Borrower
By:_____________________________
Name:
Title:
62
Managing Agents
THE BANK OF NEW YORK, as Managing Agent,
the Documentation Agent and a Bank
By:_________________________________________
Name:
Title:
CITIBANK, N.A., as Managing Agent, the
Administrative Agent and a Bank
By:_________________________________________
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, as Managing Agent and a Bank
By:_________________________________________
Name:
Title:
BANK OF AMERICA NT&SA, as Managing
Agent, a Syndication Agent and a Bank
By:_________________________________________
Name:
Title:
63
THE CHASE MANHATTAN BANK, as Managing
Agent and a Bank
By:_________________________________________
Name:
Title:
64
Agents
BANK OF MONTREAL, CHICAGO BRANCH,
as Agent and a Bank
By:_________________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as Agent and a
Bank
By:_________________________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as Agent and a Bank
By:_________________________________________
Name:
Title:
BARCLAYS BANK PLC, as Agent and a Bank
By:_________________________________________
Name:
Title:
65
CANADIAN IMPERIAL BANK OF
COMMERCE, as Agent and a Bank
By:_________________________________________
Name:
Title:
CREDIT LYONNAIS, NEW YORK BRANCH, as
Agent and a Bank
By:_________________________________________
Name:
Title:
THE DAI-ICHI KANGYO BANK LTD., NEW
YORK BRANCH, as Agent and a Bank
By:_________________________________________
Name:
Title:
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇/▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BRANCH, as Agent and a
Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent and a Bank
By:_________________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON, as
Agent and a Bank
By:_________________________________________
Name:
Title:
67
THE FUJI BANK, LIMITED, as Agent and a Bank
By:_________________________________________
Name:
Title:
GULF INTERNATIONAL BANK, as Agent and a
Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LTD., as
Agent and a Bank
By:_________________________________________
Name:
Title:
LTCB TRUST COMPANY, as Agent and a
Bank
By:_________________________________________
Name:
Title:
68
MELLON BANK, N.A., as Agent and a Bank
By:_________________________________________
Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORP, as Agent and a Bank
By:_________________________________________
Name:
Title:
NATIONSBANK OF TEXAS N.A., as Agent and a
Bank
By:_________________________________________
Name:
Title:
ROYAL BANK OF CANADA, as Agent and a
Bank
By:_________________________________________
Name:
Title:
THE SAKURA BANK, LTD, as Agent and a Bank
By:_________________________________________
Name:
Title:
69
THE SANWA BANK, LTD., as Agent and a Bank
By:_________________________________________
Name:
Title:
SOCIETE GENERALE, NEW YORK BRANCH,
as Agent and a Bank
By:_________________________________________
Name:
Title:
THE TOKAI BANK, LIMITED, as Agent and as a
Bank
By:_________________________________________
Name:
Title:
TORONTO DOMINION (NEW YORK), INC., as
Agent and a Bank
By:_________________________________________
Name:
Title:
UNION BANK, as Agent and a Bank
By:_________________________________________
Name:
Title:
70
Co-Agents
BANKERS TRUST COMPANY, as Co-Agent and
a Bank
By:_________________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as Co-Agent
and a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, as Co-Agent and a Bank
By:_________________________________________
Name:
Title:
71
FLEET BANK (f.k.a. NATWEST BANK N.A.),
as Co-Agent and a Bank
By:_________________________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH, as Co-Agent and a Bank
By:_________________________________________
Name:
Title:
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH, as Co-Agent and a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
72
Banks
BANK OF HAWAII, as a Bank
By:_________________________________________
Name:
Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR, as a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
BANQUE NATIONALE DE PARIS, as a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ BRANCH, as
Agent and a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
BAYERISCHE VEREINSBANK AG, as a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE,
as a Bank
By:_________________________________________
Name:
Title:
74
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENE, as a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
FIRST HAWAIIAN BANK, as a Bank
By:_________________________________________
Name:
Title:
HIBERNIA NATIONAL BANK, as a Bank
By:_________________________________________
Name:
Title:
LLOYDS BANK, as a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
75
PNC BANK, as a Bank
By:_________________________________________
Name:
Title:
▇▇▇▇▇ NATIONAL BANK, as a Bank
By:_________________________________________
Name:
Title:
THE TOYO TRUST & BANKING CO. LTD., as a
Bank
By:_________________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME
RATE INCOME TRUST, as a Bank
By:_________________________________________
Name:
Title:
76
▇▇▇▇▇ FARGO BANK, N.A., as a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
THE YASUDA TRUST & BANKING CO., LTD,
as a Bank
By:_________________________________________
Name:
Title:
77
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING FUND,
INC.
By:_________________________________________
Name:
Title:
78
Syndications Agents
▇▇ ▇▇▇▇▇▇ SECURITIES INC., as a Syndication
Agent
By:_________________________________________
Name:
Title:
BANK OF AMERICA NT&SA, as a
Syndication Agent
By:_________________________________________
Name:
Title:
79
================================================================================
$100,000,000
AMENDED AND RESTATED VII CREDIT AGREEMENT,
dated as of
March 26, 1997,
among
VIACOM INTERNATIONAL INC.,
as Subsidiary Borrower,
THE BANKS NAMED HEREIN,
as Banks,
THE BANK OF NEW YORK,
CITIBANK, N.A.,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK,
BANK OF AMERICA NT&SA,
and
THE CHASE MANHATTAN BANK
as Managing Agents,
THE BANK OF NEW YORK,
as the Documentation Agent,
CITIBANK, N.A.,
as the Administrative Agent,
▇▇ ▇▇▇▇▇▇ SECURITIES INC.,
and
BANK OF AMERICA NT&SA
as the Syndication Agents,
THE BANKS IDENTIFIED AS AGENTS
ON THE SIGNATURE PAGES HEREOF,
as Agents,
and
THE BANKS IDENTIFIED AS CO-AGENTS
ON THE SIGNATURE PAGES HEREOF,
as Co-Agents
================================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms........................................... 1
1.2. Computation of Time Periods............................. 13
1.3. Accounting Terms........................................ 13
ARTICLE II
AMOUNT AND TERMS OF THE SUBSIDIARY LOANS
2.1. The Subsidiary Loans.................................... 13
2.2. Making the Subsidiary Loans............................. 13
2.3. Repayment of the Subsidiary Loans....................... 15
2.4. Optional Prepayments of the Subsidiary Loans............ 15
ARTICLE III
CONVERSION, INTEREST, PAYMENTS, FEES, ETC.
3.1. Conversion/Continuation Option.......................... 15
3.2. Interest................................................ 16
3.3. Interest Rate Determination and Protection.............. 17
3.4. Fees.................................................... 17
3.5. Increased Costs......................................... 18
3.6. Illegality.............................................. 20
3.7. Capital Adequacy........................................ 20
3.8. Payments and Computations............................... 21
3.9. Sharing of Payments, Etc................................ 22
3.10. Replacement Banks....................................... 22
ARTICLE IV
CONDITIONS OF LENDING
4.1. Conditions Precedent to the Effectiveness of this
Agreement............................................. 23
4.2. Additional Conditions Precedent to the Making of the
Subsidiary Loans...................................... 24
-i-
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1. Representations and Warranties in Parent Facility....... 24
ARTICLE VI
AFFIRMATIVE COVENANTS
6.1. Compliance with Laws, Etc............................... 25
6.2. Payment of Taxes, Etc................................... 25
6.3. Maintenance of Insurance................................ 25
6.4. Preservation of Corporate Existence, Etc................ 25
6.5. Books and Access........................................ 26
6.6. Maintenance of Properties, Etc.......................... 26
6.7. Application of Proceeds................................. 26
6.8. Reporting Requirements.................................. 26
ARTICLE VII
NEGATIVE COVENANTS
7.1. Liens, Etc.............................................. 27
7.2. Transactions with Affiliates............................ 27
7.3. Margin Stock............................................ 27
7.4. Subsidiary Indebtedness................................. 27
7.5. Other Restrictions on Indebtedness...................... 27
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Events of Default....................................... 27
-ii-
ARTICLE IX
THE MANAGING AGENTS AND THE FACILITY AGENTS
9.1. Authorization and Action............................... 30
9.2. Managing Agents' and Facility Agents' Reliance, Etc.... 31
9.3. The Bank of New York, Citibank, N.A., ▇▇▇▇▇▇ Guaranty
Trust Company of New York, Bank of America NT&SA and
Their Affiliates...................................... 31
9.4. Bank Credit Decision................................... 32
9.5. Determinations Under Sections 4.1 and 4.2.............. 32
9.6. Indemnification........................................ 32
9.7. Successor Facility Agents.............................. 33
ARTICLE X
MISCELLANEOUS
10.1. Amendments, Etc........................................ 33
10.2. Notices, Etc........................................... 34
10.3. No Waiver; Remedies.................................... 34
10.4. Costs; Expenses; Indemnities........................... 35
10.5. Right of Set-Off....................................... 36
10.6. Binding Effect......................................... 37
10.7. Assignments and Participations; Additional Banks....... 37
10.8. Majority Banks are Third Party Beneficiaries........... 39
10.9. Governing Law; Severability............................ 39
10.10. Submission to Jurisdiction; Waiver of Jury Trial...... 39
10.11. Confidentiality........................................ 40
10.12. Section Titles......................................... 40
10.13. Execution in Counterparts.............................. 40
Schedules
Schedule I - Lending Offices
Schedule II - Subsidiary Commitments
Schedule 1.1 - Guarantees in Effect on the Date of
this Agreement
Exhibits
Exhibit A - Form of Notice of Borrowing
-iii-
Exhibit B - Form of VII Guarantee
Exhibit C - Form of Parent Guarantee
Exhibit D - Form of Notice of Conversion or
Continuation
Exhibit E - Form of Opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Exhibit F - Form of Assignment and Acceptance
-iv-
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 26, 1997,
which amends and restates the Credit Agreement, dated as of July 1, 1994, as
amended (the "Existing Subsidiary Agreement", as amended and restated hereby,
this "Agreement") among VIACOM INTERNATIONAL INC. a Delaware corporation (the
"Subsidiary Borrower"), the Bank parties hereto from time to time, THE BANK OF
NEW YORK, as a Managing Agent and as the Documentation Agent, CITIBANK, N.A., as
a Managing Agent and as the Administrative Agent, ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as a Managing Agent, THE BANK OF AMERICA NT&SA, as a Managing Agent
and a Syndication Agent, THE CHASE MANHATTAN BANK, as a Managing Agent, ▇▇
▇▇▇▇▇▇ SECURITIES INC., as a Syndication Agent, the Banks identified as Agents
on the signature pages hereof, as Agents, and the Banks identified as Co-Agents
on the signature pages hereof, as Co-Agents.
W I T N E S S E T H:
WHEREAS, the Subsidiary Borrower is a direct Subsidiary of Viacom
(as hereinafter defined); and
WHEREAS, simultaneously herewith, the Banks, the Managing Agents,
the Facility Agents (as hereinafter defined), the Agents and the Co-Agents are
entering into the Parent Facility (as hereinafter defined), pursuant to which
the Banks will continue to provide senior debt financing to Viacom; and
WHEREAS, the Subsidiary Borrower has requested that the Banks amend
and restate the Existing Subsidiary Agreement to continue to provide senior debt
financing for the Subsidiary Borrower and the Banks are willing to amend and
restate the Existing Subsidiary Agreement on the terms of this Agreement and to
make funds available for such purposes, but only upon the terms and subject to
the conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the covenants
and agreements contained herein, the parties hereto hereby agree that the
Existing Subsidiary Agreement is amended and restated in its entirety as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms. As used in this Agreement, the following terms
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
-1-
"Administrative Agent" means Citibank, N.A., in its capacity as the
Administrative Agent, or any successor in such capacity.
"Affiliate" means, as to any Person, any Subsidiary of such Person
and any other Person which, directly or indirectly, controls, is controlled by
or is under common control with such Person. For the purposes of this
definition, "control" means the possession of the power to direct or cause the
direction of management and policies of any Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agents" means each of the Banks identified as Agents on the
signature pages hereof.
"Agreement" means this Amended and Restated VII Credit Agreement, as
modified, amended or supplemented from time to time.
"Applicable Eurodollar Rate Margin" shall mean on any date the
percentage set forth below opposite the Credit Rating applicable to Viacom on
such date:
CREDIT RATING MARGIN
------------- ------
A-/A3 or better 0.275%
BBB+/Baa1 0.300%
BBB/Baa2 0.375%
BBB-/Baa3 0.425%
BB+/Ba1 0.600%
BB/Ba2 0.700%
BB-/Ba3 or lower 1.000%
; provided, however, that if the ratings assigned by S&P and ▇▇▇▇▇'▇ shall
differ, the Credit Rating shall be the rating which is the higher rating. Any
change in the Credit Rating of Viacom shall be effective to adjust the
applicable Eurodollar Rate Margin as of the date such change is announced by the
applicable Rating Agency.
"Applicable Lending Office" means, with respect to each Bank, its
Domestic Lending Office in the case of a Base Rate Loan, and its Eurodollar
Lending Office in the case of a Eurodollar Rate Loan.
"Arranger" means each of The Bank of New York, Citicorp Securities,
Inc., ▇▇ ▇▇▇▇▇▇ Securities Inc., BancAmerica Securities, Inc. and Chase
Securities Inc.
"Banks" means the lenders listed on the signature pages hereof, and
such other lenders as may become parties hereto from time to time pursuant to
Section 10.7.
-2-
"Base Rate" means, for any day, a fluctuating interest rate per
annum as shall be in effect for such day, which rate per annum shall be equal at
all times to the higher of
(a) the rate of interest announced publicly by the Administrative
Agent in New York, New York as the Administrative Agent's base rate in
effect for such day; or
(b) the Federal Funds Rate for such day plus 1/2 of one percent per
annum;
provided, however, that if the higher of the Credit Ratings assigned by S&P and
▇▇▇▇▇'▇ to Viacom shall be BB-/Ba3 or lower (or, if such Credit Ratings differ
by more than one level, the rating that is one rating level immediately above
the lower of such ratings, shall be BB-/Ba3 or lower), then the Base Rate shall
be equal at all times to the sum of (x) the higher of the foregoing rates plus
(y) 1/2 of one percent per annum.
"Base Rate Loan" means any Subsidiary Loan or portion thereof that
bears interest with reference to the Base Rate.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable Business
Day relates to a Eurodollar Rate Loan, a day on which dealings are also carried
on in Dollars in the London interbank market.
"Capitalized Lease" means, as applied to any Person, any lease of
property by such Person as lessee which should be capitalized on a balance sheet
of such Person prepared in accordance with GAAP, other than leases of satellite
transponders.
"Co-Agents" means each of the Banks identified as Co-Agents on the
signature pages hereof.
"Code" means the Internal Revenue Code of 1986 (or any successor
legislation thereto), as amended from time to time.
"Commercial Paper" means any unsecured promissory note of Viacom or
Viacom International with a maturity at the time of issuance not exceeding nine
months, exclusive of days of grace, issued by Viacom or Viacom International
pursuant to a commercial paper program of either.
"Commitment Fee" has the meaning specified in Section 3.4.
"Credit Rating" means the most recent rating of the long-term senior
unsecured debt of Viacom announced by ▇▇▇▇▇'▇ or S&P or, in the event that
either or
-3-
both cease the issuance of debt ratings generally, such other rating agency or
rating agencies agreed to by the Majority Banks.
"Default" means any event which with the passing of time or the
giving of notice or both would become an Event of Default.
"Documentation Agent" means The Bank of New York, in its capacity as
the Documentation Agent, or any successor in such capacity.
"Dollars" and the sign "$" each mean the lawful money of the United
States of America.
"Domestic Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Domestic Lending Office" opposite its name
on Schedule I or such other office of such Bank as such Bank may from time to
time specify to the Subsidiary Borrower and the Administrative Agent.
"Environmental Law" means the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. ss. 9601 et seq.), the Hazardous
Material Transportation Act (49 U.S.C. ss. 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. ss. 1251 et seq.), the Clean Air Act (42 U.S.C.
ss. 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. ss. 2601 et
seq.), and the Occupational Safety and Health Act (29 U.S.C. ss. 651 et seq.),
in each case as amended or supplemented from time to time, and any analogous
future federal or present or future state or local statutes, including, without
limitation, transfer of ownership notification statutes such as the New Jersey
Environmental Cleanup Responsibility Act (N.J. Stat. ▇▇▇. ss. 13:1K-6 et seq.)
and the Connecticut Industrial Transfer Law of 1985 (Conn. Gen. Stat. ss.
22a-134 et seq.) and the regulations promulgated pursuant thereto.
"Equity" means all shares, options, equity interests, general or
limited partnership interests, joint venture interests or participations or
other equivalents (regardless of how designated) of or in a corporation,
partnership or other entity, whether voting or non-voting, and including,
without limitation, common stock, preferred stock, purchase rights, warrants or
options for any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974
(or any successor legislation thereto) and the rules and regulations promulgated
thereunder, as amended from time to time.
"ERISA Affiliate" shall mean a corporation, partnership or other
entity which is considered one employer with Subsidiary Borrower under Section
4001 of ERISA or Section 414 of the Code.
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"Eurocurrency Liabilities" has the meaning specified in Regulation
D.
"Eurodollar Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Eurodollar Lending Office" opposite its
name on Schedule I (or, if no such office is specified, its Domestic Lending
Office) or such other office of such Bank as such Bank may from time to time
specify to the Subsidiary Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period, the rate of
interest per annum determined by the Administrative Agent to be the offered rate
per annum at which deposits in Dollars appears on the Telerate Page 3750 (or any
successor page) as of 11:00 A.M. (London time), or in the event such offered
rate is not available from the Telerate Page, the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rates offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London interbank market at 11:00
A.M. (London time), two Business Days before the first day of such Interest
Period for deposit in dollars in an amount substantially equal to the aggregate
Eurodollar Rate Loans to which such Interest Period relates and for a period
equal to such Interest Period.
"Eurodollar Rate Loan" means any Subsidiary Loan or portion thereof
that bears interest at a rate determined with reference to the Eurodollar Rate.
"Eurodollar Rate Reserve Percentage" means, for any Bank for any
Interest Period, the reserve percentage applicable during such Interest Period
(or if more than one such percentage shall be so applicable, the daily average
of such percentages for those days in such Interest Period during which any such
percentage shall be so applicable) under Regulation D for determining the actual
reserve requirement incurred by such Bank (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities having
a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 8.1.
"Existing Subsidiary Credit Agreement" means the Credit Agreement,
dated as of July 1, 1994, as amended through the date hereof, among Viacom
International, the other subsidiary borrowers referred to therein, and the
banks, the agent and the co-agent parties thereto.
"Facility Agents" means each of the Administrative Agent, the
Documentation Agent and the Syndication Agents.
"FCC" means the Federal Communications Commission, or any successor
thereto.
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"FCC License" means, with respect to the Subsidiary Borrower 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 Rate" means, for any day, a fluctuating interest rate
per annum equal for such day to 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 for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for such day on such transactions received by
the Administrative Agent from three federal funds brokers of recognized standing
selected by it.
"Final Judgment" has the meaning specified in Section 8.1(g).
"Fiscal Quarter" means any three month period ending March 31, June
30, September 30 or December 31.
"Fiscal Year" means each twelve-month period ending December 31.
"Franchise" means a franchise, authorization or right by contract to
construct, own, operate or otherwise exploit any cable television facility
operated by the Subsidiary Borrower or any of its Subsidiaries, granted by any
Governmental Authority.
"Funding Date" means the date on which the conditions set forth in
Sections 4.1 and 4.2 are satisfied or waived and the Subsidiary Loans are made
hereunder.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time and set forth in the rules,
regulations, opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entity as may be in general use by significant segments
of the accounting profession and which are applicable to the circumstances as of
the date of determination.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantor Subsidiary" means Viacom International.
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"Indebtedness" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money (including, without
limitation, in the case of the Subsidiary Borrower, the obligations of the
Subsidiary Borrower for borrowed money under this Agreement), (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person to pay the deferred
purchase price of Property or services, except as provided below, (iv) all
obligations of such Person as lessee under Capitalized Leases, (v) all
Indebtedness of others secured by a Lien on any Property of such Person, whether
or not such Indebtedness is assumed by such Person, (vi) all Indebtedness of
others directly or indirectly guaranteed or otherwise assumed by such Person,
including any obligations of others endorsed (otherwise than for collection or
deposit in the ordinary course of business) or discounted or sold with recourse
by such Person, or in respect of which such Person is otherwise directly or
indirectly liable, including, without limitation any Indebtedness in effect
guaranteed by such Person through any agreement (contingent or otherwise) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation,
or to maintain the solvency or any balance sheet or other financial condition of
the obligor of such obligation, provided that Indebtedness of Viacom and its
Subsidiaries (including the Subsidiary Borrower) shall not include (a)
guarantees in existence on the date hereof of Indebtedness of discontinued
operations, and (b) guarantees of Indebtedness that are identified on Schedule
1.1 hereto and that arise from commitments in existence at September 29, 1994
(in each of cases (a) and (b), only if such guarantees are not extended by
Viacom or any of its Subsidiaries (including the Subsidiary Borrower) after
September 29, 1994 or in the case of any increase in commitments, only the
amount of the increase in such existing commitments shall be included in
Indebtedness) (vii) all obligations of such Person as issuer, customer or
account party under letters of credit or bankers' acceptances that are either
drawn or that back financial obligations that would otherwise be Indebtedness;
provided, however, that in each of the foregoing clauses (i) through (vii),
Indebtedness shall not include obligations (other than under this Agreement or
the Parent Facility) specifically with respect to the production, distribution
and acquisition of motion pictures or other programming rights, talent or
publishing rights.
"Indemnified Liability" has the meaning specified in Section
10.4(b).
"Indemnified Person" has the meaning specified in Section 10.4(b).
"Interest Period" means, (a) in the case of Base Rate Loans, the
period commencing on the date such Subsidiary Loans are made or on the date of
conversion of such Subsidiary Loans from Eurodollar Rate Loans and ending on the
last day of each Fiscal Quarter, and (b) in the case of Eurodollar Rate Loans,
(i) initially, the period commencing on the date such Subsidiary Loans are made
or on the date of conversion of such Subsidiary Loans or portions thereof from
Base Rate Loans and ending one, two, three or six months thereafter, as selected
by the applicable Subsidiary Borrower in its
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Notice of Borrowing or Notice of Conversion or Continuation given to the
Administrative Agent pursuant to Section 2.2 or 3.1, as the case may be, and
(ii) thereafter, if such Subsidiary Loans are renewed, in whole or in part, as
Eurodollar Rate Loans pursuant to Section 3.1, the period commencing on the last
day of the immediately preceding Interest Period therefor and ending one, two,
three or six months thereafter, as selected by the applicable Subsidiary
Borrower in its Notice of Conversion or Continuation given to the Administrative
Agent pursuant to Section 3.1, subject, however, to the following:
(i) if any Interest Period would otherwise end on a day that is not
a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless the result of such extension for any
Eurodollar Rate Loan would be to extend such Interest Period into another
calendar month, in which event such Interest Period shall end on the
immediately preceding Business Day;
(ii) any Interest Period in respect of Eurodollar Rate Loans that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of a calendar
month;
(iii) no Interest Period may extend beyond the Termination Date;
(iv) a Subsidiary Borrower may not select any Interest Period in
respect of Subsidiary Loans in an aggregate amount less than $5,000,000;
and
(v) there shall be outstanding at any one time no more than 5
Interest Periods in the aggregate.
"IRS" means the Internal Revenue Service, or any successor thereto.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement.
"Loan Documents" means, collectively, this Agreement, the Parent
Facility, the VII Guarantee and the Parent Guarantee.
"Loan Parties" means each of Viacom, and the Subsidiary Borrower.
"Majority Banks" means, at any time, Banks having at least 51% of
the aggregate amount of (x) the Subsidiary Commitments and (y) the Commitments
under (and as defined in) the Parent Facility, taken together and voting as a
single group; provided, however, that, for purposes of this definition, if the
Subsidiary Commitment or
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Commitment of any Bank shall have been terminated, the then aggregate unpaid
principal amount of Subsidiary Loans of such Bank hereunder and Loans of such
Bank under (and as defined in) the Parent Facility shall be deemed to be such
Bank's Subsidiary Commitment or Commitment, as the case may be.
"Managing Agents" means each of The Bank of New York, Citibank,
N.A., ▇▇▇▇▇▇ Guaranty Trust Company of New York, Bank of America NT&SA and The
Chase Manhattan Bank, N.A. acting in such capacity.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means a change that has resulted or would
result in a Material Adverse Effect.
"Material Adverse Effect" means a material adverse effect on the
business, financial condition, operations or Properties of Viacom and its
Subsidiaries taken as a whole.
"Material Credit Agreement Change" means a change that has
materially adversely affected or would materially adversely affect the legality,
validity or enforceability of any payment obligation of Viacom or Viacom
International.
"Material Subsidiary" of any Person means any "significant
subsidiary" of such Person as defined in Regulation S-X, as amended from time to
time, promulgated under the Securities Act of 1933, as amended.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Subsidiary Borrower, any of its
Subsidiaries or any ERISA Affiliate of the Subsidiary Borrower is making, is
obligated to make, has made or been obligated to make, contributions on behalf
of participants who are or were employed by any of them.
"NAI" means National Amusements, Inc., a Maryland corporation.
"Notice of Assignment and Acceptance" has the meaning specified in
Section 10.7(a).
"Notice of Borrowing" means a notice of a Subsidiary Borrower
substantially in the form of Exhibit A hereto specifying therein (i) the date of
the proposed Subsidiary Borrowing to be made by the Subsidiary Borrower, (ii)
the aggregate amount of such proposed Subsidiary Borrowing, (iii) the amount of
such Subsidiary
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Borrowing, if any, requested to be Eurodollar Rate Loans and (iv) the initial
Interest Period or Interest Periods for any such Eurodollar Rate Loans.
"Notice of Conversion or Continuation" has the meaning specified in
Section 3.1.
"Original Funding Date" means the "Initial Funding Date", as defined
in the Existing Subsidiary Agreement.
"Parent Facility" means the Amended Restated Credit Agreement, dated
as of the date hereof, among Viacom, the banks parties thereto from time to
time, The Bank of New York, Citibank, N.A., ▇▇▇▇▇▇ Guaranty Trust Company of New
York, Bank of America NT&SA and The Chase Manhattan Bank, as Managing Agents,
The Bank of New York, as the Documentation Agent, Citibank, N.A., as the
Administrative Agent, ▇▇ ▇▇▇▇▇▇ Securities Inc. and Bank of America NT&SA, as
Syndication Agents, the banks identified as Agents on the signature pages
thereof, as Agents, and the banks identified as Co-Agents on the signature pages
thereof, as Co-Agents.
"Parent Guarantee" means the guarantee by Viacom of the obligations
of the Subsidiary Borrower pursuant to this Agreement substantially in the form
of Exhibit C hereto.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Pension Plan" means an employee pension benefit plan, as defined in
Section 3(2) of ERISA (other than a Multiemployer Plan), which is not an
individual account plan, as defined in Section 3(34) of ERISA, and which the
Subsidiary Borrower, any of its Subsidiaries or any ERISA Affiliate of the
Subsidiary Borrower now or in the future maintains, contributes to or has an
obligation to contribute to on behalf of participants who are or were employed
by any of them.
"Permit" means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or Governmental Authority.
"Plan" shall mean an employee benefit plan as defined in Section
3(3) of ERISA which is maintained or contributed to by the Subsidiary Borrower
or an ERISA Affiliate of the Subsidiary Borrower.
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"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, and whether tangible or intangible, including,
without limitation, the right to use, transmit, display, license or otherwise
temporarily or permanently benefit from the possession of, control of or access
to any film, television program, trademark, trade name, copyright, service ▇▇▇▇
or any other type of intellectual or intangible property.
"Qualified Plan" means an employee pension benefit plan, as defined
in Section 3(2) of ERISA, which is intended to be tax-qualified under Section
401(a) of the Code, and which the Subsidiary Borrower, any of its Subsidiaries
or any ERISA Affiliate of the Subsidiary Borrower now or in the future
maintains, contributes to or has an obligation to contribute to on behalf of
participants who are or were employed by any of them.
"Ratable Portion" means, with respect to any Bank, the percentage
obtained by dividing the amount of such Bank's Subsidiary Commitment by the
aggregate amount of all the Subsidiary Commitments of all the Banks.
"Reference Banks" means The Bank of New York, Citibank, N.A., The
Chase Manhattan Bank, ▇▇▇▇▇▇ Guaranty Trust Company of New York and Bank of
America NT&SA.
"Register" has the meaning specified in Section 10.7(g) hereof.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System (or any successor thereto), as in effect from time to
time, or any successor thereto.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System (or any successor thereto), as in effect from time to
time, or any successor thereto.
"Requirements of Law" means all federal, state and local laws,
rules, regulations, orders, decrees or other determinations of an arbitrator,
court or other Governmental Authority, including the requirements of ERISA and
Environmental Law.
"Responsible Officer" of any Person means any of the officers of
such Person listed in the certificate delivered to the Managing Agents pursuant
to Section 4.1(c) or otherwise notified to the Administrative Agent as being
authorized to execute and deliver documents and certificates and otherwise act
on behalf of such Person in all matters (other than financial matters) arising
under this Agreement or any other Loan Document.
"S&P" means Standard & Poor's Ratings Group.
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"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
Equity having ordinary voting power to elect a majority of the board of
directors of such entity (irrespective of whether, at the time, Equity of any
other class or classes of such entity shall have or might have voting power by
reason of the happening of any contingency) is, or of which more than 50% of the
interests in which are, at the time, directly or indirectly, owned by such
Person and/or one or more Subsidiaries of such Person.
"Subsidiary Borrower" has the meaning specified in the recitals
hereof.
"Subsidiary Borrowing" means a borrowing by the Subsidiary Borrower
consisting of Subsidiary Loans made on the same day by the Banks ratably
according to their respective Subsidiary Commitments.
"Subsidiary Commitment" has the meaning specified in Section 2.1(a).
"Subsidiary Loan" means a loan made to the Subsidiary Borrower
pursuant to Section 2.1.
"Syndication Agents" means each of ▇▇ ▇▇▇▇▇▇ Securities Inc. and
Bank of America NT&SA acting in such capacity, or any successor in such
capacity.
"Termination Date" means the earliest of (i) July 1, 2002, (ii) the
date of the earlier termination in whole of all of the Subsidiary Commitments
pursuant to the terms hereof, including pursuant to Section 8.1 and (iii) the
date on which the Parent Facility is terminated.
"Title IV Plan" means a Pension Plan, other than a Multiemployer
Plan, which is covered by Title IV of ERISA.
"Viacom" means Viacom Inc., a Delaware corporation, or any successor
thereto.
"Viacom International" means Viacom International Inc., a Delaware
corporation.
"Viacom Total Leverage Ratio" means the Total Leverage Ratio as
defined in and calculated in accordance with the Parent Facility.
"VII Guarantee" means the guarantee by Viacom International of the
obligations of Viacom pursuant to the Parent Facility, substantially in the form
of Exhibit C to the Parent Facility.
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"Withdrawal Liability" means, as to any Person, at any time, the
aggregate amount of the liabilities, if any, of such Person pursuant to Section
4201 of ERISA.
1.2. Computation of Time Periods. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding" and the word "through" means "to and including".
1.3. Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP.
ARTICLE II
AMOUNT AND TERMS OF THE SUBSIDIARY LOANS
2.1. The Subsidiary Loans. (a) The Subsidiary Loans. On the terms
and subject to the conditions contained in this Agreement, each Bank severally
agrees to make (or continue) a Subsidiary Loan on the Funding Date to the
Subsidiary Borrower in the amount set forth opposite such Bank's name as such
Bank's "Subsidiary Commitment" for the Subsidiary Borrower (as adjusted from
time to time by reason of assignments in accordance with the provisions of
Section 10.7, such Bank's "Subsidiary Commitment").
(b) Evidence of Debt. (i) Each Bank shall maintain in accordance
with its usual practice an account or accounts evidencing the Indebtedness of
the Subsidiary Borrower to each Bank resulting from the Subsidiary Loan made by
such Bank to the Subsidiary Borrower, including the amounts of principal and
interest payable and paid to such Bank from time to time hereunder.
(ii) The Register maintained by the Administrative Agent pursuant to
Section 10.7(g) shall include a "Subsidiary Loan control account" for the
Subsidiary Borrower and for each Bank, in which accounts shall be recorded (A)
the amount of each Bank's Subsidiary Loans (B) the date on which the Subsidiary
Loans were made, (C) the amount of any principal or interest due and payable or
to become due and payable from the Subsidiary Borrower to each Bank with respect
to the Subsidiary Borrower's Subsidiary Loans hereunder and (D) the amount of
any sum received by the Administrative Agent from the Subsidiary Borrower with
respect to Subsidiary Loans made to it hereunder and each Bank's Ratable Portion
thereof.
(iii) The entries made in the Register shall be conclusive and
binding for all purposes, absent manifest error.
2.2. Making the Subsidiary Loans. (a) The Subsidiary Borrowing shall
be made upon receipt of a Notice of Borrowing, given by the Subsidiary Borrower
to the
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Administrative Agent not later than 9:30 A.M. (New York City time) on the
Funding Date, in the event such Subsidiary Borrowing is to be comprised of Base
Rate Loans, and (ii) 11:00 A.M. (New York City time) on the third Business Day
prior to the Initial Funding Date, in the event such Subsidiary Borrowing is to
be comprised of Eurodollar Rate Loans.
(b) The Administrative Agent shall give to each Bank prompt notice
(but in any event on the same day) of its receipt of a Notice of Borrowing and,
if Eurodollar Rate Loans are properly requested in such Notice of Borrowing,
upon its determination thereof, notice of the applicable interest rate under
Section 3.2. Each Bank shall, before 11:00 A.M. (or in the case of a Subsidiary
Borrowing being made on the same day, before 12:00 noon) (New York City time) on
the date of the proposed Subsidiary Borrowing, make available for the account of
its Applicable Lending Office to the Administrative Agent at its address
referred to in Section 10.2, in immediately available funds, such Bank's Ratable
Portion of each such proposed Subsidiary Borrowing. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article IV, the Administrative Agent will make such funds available
to the Subsidiary Borrower at the Administrative Agent's aforesaid address.
(c) Each Notice of Borrowing pursuant to this Section 2.2 shall be
irrevocable and binding on the Subsidiary Borrower. In the case of a proposed
Subsidiary Borrowing comprised of Eurodollar Rate Loans to the Subsidiary
Borrower, the Subsidiary Borrower shall indemnify each Bank against any loss,
cost or expense incurred by such Bank as a result of any failure to fulfill on
or before the date specified in such Notice of Borrowing the applicable
conditions set forth in Article IV, including, without limitation, any loss
(excluding loss of the margin payable in accordance with Section 3.2 on the
amount of principal not borrowed as a result of such failure), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Bank to fund any Eurodollar Rate Loan to be made by such Bank
to the Subsidiary Borrower as part of any such proposed Subsidiary Borrowing
when such Eurodollar Rate Loan, as a result of such failure, is not made on such
date.
(d) Unless the Administrative Agent shall have received notice from
a Bank prior to the date of any proposed Subsidiary Borrowing pursuant to this
Section 2.2 that such Bank will not make available to the Administrative Agent
such Bank's Ratable Portion of such Subsidiary Borrowing, the Administrative
Agent may assume that such Bank has made such Ratable Portion available to the
Administrative Agent on the date of such Subsidiary Borrowing in accordance with
this Section 2.2 and the Administrative Agent may, in reliance upon such
assumption, make available to the Subsidiary Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such Ratable Portion available to the Administrative Agent and the
Administrative Agent has so made available such amount, such Bank and the
Subsidiary Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such
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amount is made available to the Subsidiary Borrower until the date such amount
is repaid to the Administrative Agent, at (i) in the case of the Subsidiary
Borrower, the interest rate applicable at the time to the Subsidiary Loans
comprising such Subsidiary Borrowings and (ii) in the case of such Bank, the
Federal Funds Rate. If such Bank shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Bank's
Subsidiary Loan as part of any such Subsidiary Borrowing for purposes of this
Agreement. If the Subsidiary Borrower shall repay to the Administrative Agent
such corresponding amount, such payment shall not relieve such Bank of any
obligation it may have to the Subsidiary Borrower hereunder.
(e) The failure of any Bank to make any Subsidiary Loan to be made
by it to the Subsidiary Borrower shall not relieve any other Bank of its
obligation, if any, hereunder to make its Subsidiary Loan to the Subsidiary
Borrower on the date of such Subsidiary Borrowing, but no Bank shall be
responsible for the failure of any other Bank to make the Subsidiary Loan to be
made by such other Bank to the Subsidiary Borrower.
2.3. Repayment of the Subsidiary Loans. The Subsidiary Borrower
shall pay the entire principal amount of the Subsidiary Loans of each Bank in
full on, or prior to, the Termination Date.
2.4. Optional Prepayments of the Subsidiary Loans. The Subsidiary
Borrower may, upon at least three Business Days' prior notice (or at least one
Business Day's prior notice in the case of Base Rate Loans) to the
Administrative Agent stating the proposed date and aggregate principal amount of
the prepayment of, and if such notice is given shall, prepay the outstanding
principal amount of the Subsidiary Loans, in whole or ratably in part, together
with accrued interest to the date of such prepayment on the principal amount
prepaid; provided, however, that the Subsidiary Borrower shall indemnify the
Banks pursuant to Section 10.4(c) in the event that any prepayment of any
Eurodollar Rate Loans shall be made on a day other than the last day of an
Interest Period. Amounts borrowed under Section 2.1 and prepaid pursuant to this
Section 2.5 may not be reborrowed. Any partial prepayment may be allocated to
scheduled installments of the Subsidiary Loans in any manner requested by the
Subsidiary Borrower. Upon any prepayment of the Subsidiary Loans, the Subsidiary
Commitment shall be reduced to the amount of the prepayment.
ARTICLE III
CONVERSION, INTEREST, PAYMENTS, FEES, ETC.
3.1. Conversion/Continuation Option. The Subsidiary Borrower may
elect (i) at any time to convert Base Rate Loans or any portion thereof to
Eurodollar Rate Loans or (ii) at the end of any Interest Period with respect
thereto, to convert Eurodollar Rate Loans or any portion thereof into Base Rate
Loans, or to continue such Eurodollar
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Rate Loans or any portion thereof as Eurodollar Rate Loans for an additional
Interest Period; provided, however, that the aggregate of the Eurodollar Rate
Loans so converted or so continued for each Interest Period must be in the
amount of $5,000,000 or an integral multiple of $5,000,000 in excess thereof.
Each such election shall be in substantially the form of Exhibit E hereto (a
"Notice of Conversion or Continuation") and shall be made by giving the
Administrative Agent at least one Business Day's, in the case of a conversion to
a Base Rate Loan, and three Business Days', in the case of a conversion to or a
continuation of a Eurodollar Rate Loan, prior written notice thereof specifying
(A) the amount and type of conversion or continuation, (B) in the case of a
conversion to or a continuation of Eurodollar Rate Loans, the Interest Period
therefor, and (C) in the case of a conversion, the date of conversion (which
date shall be a Business Day and, if a conversion from a Eurodollar Rate Loan,
shall also be the last day of the Interest Period therefor). The Administrative
Agent shall promptly (but in any event on the same day) notify each Bank of its
receipt of a Notice of Conversion or Continuation and of the contents thereof.
Notwithstanding the foregoing, no conversion in whole or in part of Base Rate
Loans to Eurodollar Rate Loans, and no continuation in whole or in part of
Eurodollar Rate Loans upon the expiration of any Interest Period therefor, shall
be permitted at any time at which an Event of Default shall have occurred and be
continuing. If, within the time period required under the terms of this Section
3.1, the Administrative Agent does not receive a Notice of Conversion or
Continuation from the Subsidiary Borrower containing an election to continue all
or any portion of the Eurodollar Rate Loans for an additional Interest Period or
to convert all or any portion of such Subsidiary Loans, then, upon the
expiration of the Interest Period therefor, such Subsidiary Loans or the
portions thereof for which an election to continue or convert has not been made
will be automatically converted to Base Rate Loans. Each Notice of Conversion or
Continuation shall be irrevocable.
3.2. Interest. The Subsidiary Borrower shall pay interest on the
unpaid principal amount of each Subsidiary Loan from the date thereof until the
principal amount thereof shall be paid in full, at the following rates per
annum:
(a) Base Rate Loans. For Base Rate Loans, at a rate per annum equal
at all times to the Base Rate in effect from time to time, payable
quarterly in arrears on the last day of each September, December, March
and June, on the Termination Date and on the date any Base Rate Loan is
converted or paid in full.
(b) Eurodollar Rate Loans. For Eurodollar Rate Loans, at a rate per
annum equal at all times during the applicable Interest Period for each
Eurodollar Rate Loan to the sum of the Eurodollar Rate for such Interest
Period plus the Applicable Eurodollar Rate Margin, payable in arrears (i)
on the last day of such Interest Period and (ii) if such Interest Period
has a duration of more than three months, on each day during such Interest
Period that occurs every three months from the first day of such Interest
Period.
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(c) Default Rate of Interest. If any amount of principal of any
Subsidiary Loan to the Subsidiary Borrower is not paid when due, whether
at stated maturity, by acceleration or otherwise, the interest rate
applicable to any such amount shall be increased by 2.00% per annum,
payable on demand, and if any interest, fee or other amount payable by the
Subsidiary Borrower hereunder is not paid when due, such amount shall bear
interest at a rate per annum equal at all times to the Base Rate in effect
from time to time plus 2% per annum payable on demand.
3.3. Interest Rate Determination and Protection. (a) In the event
that the Eurodollar Rate is not available from the Telerate Page, the Eurodollar
Rate for each Interest Period for Eurodollar Rate Loans shall be determined by
the Administrative Agent on the basis of applicable rates furnished to and
received by the Administrative Agent from the Reference Banks two Business Days
before such Interest Period. Each Reference Bank agrees to furnish to the
Administrative Agent timely information for the purpose of determining each
Eurodollar Rate. If any of the Reference Banks shall not furnish such timely
information to the Administrative Agent for the purpose of determining any such
interest rate, the Administrative Agent shall determine such interest rate on
the basis of timely information furnished by the other Reference Bank or
Reference Banks.
(b) The Administrative Agent shall give prompt notice to the
Subsidiary Borrower and the Banks of the applicable interest rate determined by
the Administrative Agent for purposes of Section 3.2(a) or (b), and the
applicable rate, if any, furnished by each Reference Bank for the purpose of
determining the applicable interest rate under Section 3.2(b).
(c) If, with respect to Eurodollar Rate Loans, the Majority Banks
determine in good faith and notify the Administrative Agent that the Eurodollar
Rate for any Interest Period will not adequately reflect the cost to such Banks
of making such Subsidiary Loans to the Subsidiary Borrower or funding or
maintaining their respective Eurodollar Rate Loans for such Interest Period, the
Administrative Agent shall forthwith so notify the Subsidiary Borrower and the
Banks, whereupon
(i) each Eurodollar Rate Loan will automatically, on the last day of
the then existing Interest Period therefor, convert into a Base Rate Loan
unless the Majority Banks notify the Administrative Agent that the
circumstances causing such conversion no longer exist and the Subsidiary
Borrower delivers a timely Notice of Conversion or Continuation with
respect to such Subsidiary Loans; and
(ii) the obligations of the Banks to make Eurodollar Rate Loans or
to convert Subsidiary Loans into Eurodollar Rate Loans shall be suspended
until the Administrative Agent shall notify the Subsidiary Borrower and
the Banks that the circumstances causing such suspension no longer exist.
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3.4. Fees: Viacom has agreed to pay to the Banks, Managing Agents,
Facility Agents, Agents, Co-Agents and Arrangers certain fees which are earned
on the date of the signing of this Agreement and payable on the Funding Date as
separately agreed.
3.5. Increased Costs. (a) If, due to either (i) the introduction of
or any change (other than any change by way of imposition or increase of reserve
requirements included in the Eurodollar Rate Reserve Percentage) in, or in the
interpretation of, any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost (other than with respect to income, franchise or withholding taxes or other
taxes of a similar nature) to any Bank of agreeing to make or making, funding or
maintaining any Eurodollar Rate Loans to the Subsidiary Borrower, then (A) such
Bank shall, as soon as such Bank becomes aware of such increased cost, but in
any event not later than 60 days after such increased cost was incurred, deliver
to the Subsidiary Borrower and the Administrative Agent a certificate stating
(1) the actual amount of such increased cost incurred by such Bank and (2) that
it is such Bank's customary practice, from and after the date of this Agreement,
to charge its borrowers for increased costs incurred by it; (B) the Subsidiary
Borrower shall, within 30 days after its receipt of such certificate, at its
sole option, either (1) pay to the Administrative Agent for the account of such
Bank amounts sufficient to compensate such Bank for the increased cost incurred
by it as set forth in the certificate referred to above or (2) replace such Bank
in accordance with the provisions of Section 3.10, provided that if the
Subsidiary Borrower does not exercise the option specified in clause (2) above
within 30 days after receipt of the certificate referred to above, then (x) such
Bank shall deliver to the Subsidiary Borrower and the Administrative Agent a
second certificate stating the increased cost incurred by such Bank and (y) the
Subsidiary Borrower shall promptly upon receipt of such second certificate pay
to the Administrative Agent for the account of such Bank amounts sufficient to
compensate such Bank for such increased cost; and (C) such Bank shall use its
reasonable best efforts to designate another of its then existing offices as its
Applicable Lending Office if the making of such designation would, without any
detrimental effect to such Bank, avoid the need for, or reduce the amount of,
future increased costs which are probable of being incurred by such Bank. The
amount of increased costs payable by the Subsidiary Borrower to any Bank as
stated in any such certificate delivered pursuant to the provisions of this
Section 3.5(a) shall be conclusive and binding for all purposes, absent manifest
error. In determining any such amount, such Bank may use reasonable averaging
and attribution methods. If the Subsidiary Borrower so notifies the
Administrative Agent within five Business Days after receipt of any certificate
delivered to the Subsidiary Borrower pursuant to the provisions of this Section
3.5(a), the Subsidiary Borrower may either (x) prepay in full all Eurodollar
Rate Loans of such Bank then outstanding in accordance with Section 3.8 and,
additionally, reimburse such Bank for such increased cost in accordance with
this Section 3.5(a) or (y) convert all Eurodollar Rate Loans of all Banks then
outstanding into Base Rate Loans
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in accordance with Section 3.1 and, additionally, reimburse such Bank for such
increased cost in accordance with this Section 3.5(a).
(b) If any Bank shall be required under Regulation D to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities with respect to the Subsidiary Loans, then (i) such
Bank shall, within 60 days after the end of any Interest Period with respect to
any Eurodollar Rate Loan during which such Bank was so required to maintain such
reserves, deliver to the Subsidiary Borrower and the Administrative Agent a
certificate stating (A) that such Bank was required to maintain reserves and as
a result such Bank incurred additional costs in connection with making
Eurodollar Rate Loans to the Subsidiary Borrower, (B) in reasonable detail, such
Bank's computations of the amount of additional interest payable by the
Subsidiary Borrower pursuant to the provisions of Section 3.5(b)(ii) and (C)
that it is such Bank's customary practice, from and after the date of this
Agreement, to charge its borrowers for reserves so maintained by it, and (ii)
the Subsidiary Borrower shall, promptly upon receipt of any such certificate,
pay to the Administrative Agent, for the account of such Bank, additional
interest on the unpaid principal amount of each Eurodollar Rate Loan of such
Bank to the Subsidiary Borrower outstanding during the Interest Period with
respect to which the above-referenced certificate was delivered to the
Subsidiary Borrower, at a rate per annum equal to the difference obtained by
subtracting (x) the Eurodollar Rate for such Interest Period from (y) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Bank for such Interest Period.
The amount of interest payable by the Subsidiary Borrower to any Bank as stated
in any certificate delivered to the Subsidiary Borrower and the Administrative
Agent pursuant to the provisions of this Section 3.5(b) shall be conclusive and
binding for all purposes, absent manifest error.
(c) The payments required under Sections 3.5(a) and (b) are in
addition to any other payments and indemnities required under this Agreement.
3.6. Illegality. Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation of
any law or regulation, in each case after the date hereof, shall make it
unlawful, or any central bank or other Governmental Authority shall assert that
it is unlawful, for any Bank or its Eurodollar Lending Office to make Eurodollar
Rate Loans or to continue to fund or maintain Eurodollar Rate Loans, then, on
notice thereof and demand therefor by such Bank to the Subsidiary Borrower
through the Administrative Agent, (i) the obligation of such Bank to make or to
continue Eurodollar Rate Loans and to convert Base Rate Loans into Eurodollar
Rate Loans shall be suspended until such Bank through the Administrative Agent
shall notify the Subsidiary Borrower that the circumstances causing such
suspension no longer exist and (ii) the Subsidiary Borrower shall forthwith
prepay in full all Eurodollar Rate Loans of such Bank then outstanding, together
with interest accrued thereon, unless the Subsidiary Borrower, within five
Business Days of such notice and demand, converts all Eurodollar Rate Loans of
all Banks then outstanding into Base Rate
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Loans in accordance with the notice periods of Section 3.1; provided, however,
that before making any such demand, each Bank agrees to use its reasonable best
efforts to designate another of its then existing offices as its Applicable
Lending Office if the making of such a designation would, without any
detrimental effect to such Bank, cause the making of Eurodollar Rate Loans to
not be subject to this Section 3.6.
3.7. Capital Adequacy. If any Bank shall, at any time, reasonably
determine that (a) the adoption (i) after the date of this Agreement, of any
capital adequacy guidelines or (ii) at any time, of any other applicable law,
government rule, regulation or order regarding capital adequacy of banks or bank
holding companies, (b) any change in (I) any of the foregoing or (II) the
interpretation or administration of any of the foregoing by any Governmental
Authority, central bank or comparable agency or (c) compliance with any policy,
guideline, directive or request regarding capital adequacy (whether or not
having the force of law and whether or not failure to comply therewith would be
unlawful) of any Governmental Authority, central bank or comparable agency,
would have the effect of reducing the rate of return on the capital of such Bank
to a level below that which such Bank could have achieved but for such adoption,
change or compliance (taking into consideration the policies of such Bank with
respect to capital adequacy in effect immediately before such adoption, change
or compliance) and (x) such reduction is as a consequence of the Subsidiary
Commitment of, or the making, converting or continuing of any Subsidiary Loans
to the Subsidiary Borrower by, such Bank hereunder and (y) such reduction is
reasonably deemed by such Bank to be material, then (1) such Bank shall deliver
to the Subsidiary Borrower and the Administrative Agent a certificate stating
the reduction in the rate of return such Bank will in the future suffer as a
result of its Subsidiary Commitment or the making, converting or continuing any
Subsidiary Loans by it hereunder and (2) the Subsidiary Borrower shall, within
30 days after its receipt of such certificate, at its sole option, either (A)
pay to the Administrative Agent for the account of such Bank from time to time
as specified by such Bank such amount as shall be sufficient to compensate such
Bank for such reduced return, or (B) replace such Bank in accordance with the
provisions of Section 3.10; provided, however, that if the Subsidiary Borrower
does not exercise the option specified in clause (B) above within 30 days after
receipt of the certificate referred to above, then (1) such Bank shall deliver
to the Subsidiary Borrower and the Administrative Agent a second certificate
stating the reduction in the rate of return of such Bank and (2) the Subsidiary
Borrower shall promptly pay, as specified by such Bank, to the Administrative
Agent for the account of such Bank amounts sufficient to compensate such Bank
for the reduction in its rate of return. The amount stated in any certificate
delivered to the Subsidiary Borrower pursuant to the provisions of this Section
3.7 shall be conclusive and binding for all purposes, absent manifest error. In
determining any such amount, such Bank may use reasonable averaging and
attribution methods. The payments required under this Section 3.7 are in
addition to any other payments and indemnities required hereunder.
3.8. Payments and Computations. (a) The Subsidiary Borrower shall
make each payment payable by it hereunder not later than 11:00 A.M. (New York
City
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time) on the day when due, in Dollars, to the Administrative Agent at its
address referred to in Section 10.2 in immediately available funds without
set-off or counterclaim. The Administrative Agent will promptly thereafter (but
in any event on the same day) cause to be distributed like funds relating to the
payment of principal or interest or fees ratably (other than amounts payable
pursuant to Section 3.5, 3.6 or 3.7) to the Banks for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Bank to such Bank for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Payment received by the Administrative Agent after
11:00 A.M. (New York City time) shall be deemed to be received on the next
Business Day; provided, however, that the Administrative Agent shall use its
reasonable best efforts to invest any amounts so received by the Administrative
Agent in overnight investments satisfactory to the Subsidiary Borrower, and any
earnings on any such investments shall be for the Subsidiary Borrower's account
and may be credited against any interest payable hereunder during such period.
(b) All computations of the Commitment Fee or of interest based on
the rate of interest specified in clause (a) of the definition of Base Rate and
of fees shall be made by the Administrative Agent on the basis of a year of 365
or 366 days, as the case may be, and all computations of interest based on the
Eurodollar Rate or the Federal Funds Rate shall be made by the Administrative
Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest and fees are payable. All computations of the
Commitment Fee shall be based on the aggregate average daily unused Subsidiary
Commitment of each Bank. Each determination by the Administrative Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or fees, as the case may be.
(d) Unless the Administrative Agent shall have received notice from
the Subsidiary Borrower prior to the date on which any payment is due to the
Banks hereunder that the Subsidiary Borrower will not make such payment in full,
the Administrative Agent may assume that the Subsidiary Borrower has made such
payment in full to the Administrative Agent on such date and the Administrative
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such Bank. If and
to the extent that the Subsidiary Borrower shall not have so made such payment
in full to the Administrative Agent, each Bank shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such
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amount is distributed to such Bank until the date such Bank repays such amount
to the Administrative Agent, at the Federal Funds Rate.
3.9. Sharing of Payments, Etc. If any Bank shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Subsidiary Loans made by it (other than pursuant
to Section 3.5, 3.6 or 3.7) in excess of its Ratable Portion of payments on
account of the Subsidiary Loans obtained by all the Banks, such Bank shall
forthwith purchase from the other Banks such participations in such Subsidiary
Loans made by them as shall be necessary to cause such purchasing Bank to share
the excess payment ratably with each of them; provided, however, that if all or
any portion of such excess payment is thereafter recovered from such purchasing
Bank, such purchase from each Bank shall be rescinded and each such Bank shall
repay to the purchasing Bank the purchase price to the extent of such recovery
together with an amount equal to such Bank's ratable share (according to the
proportion of (i) the amount of such Bank's required repayment to (ii) the total
amount so recovered from the purchasing Bank) of any interest or other amount
paid or payable by the purchasing Bank in respect of the total amount so
recovered. The Subsidiary Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section 3.9 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right
of set-off) with respect to such participation as fully as if such Bank were the
direct creditor of the Subsidiary Borrower in the amount of such participation.
3.10. Replacement Banks. Upon the election of the Subsidiary
Borrower to replace any Bank pursuant to the provisions of Section 3.5(a)(B)(2)
or 3.7(2)(B), the Subsidiary Borrower shall provide to the Administrative Agent
a notice setting forth the replacement Bank or Banks, and the Bank being so
replaced shall take all actions as may be necessary to transfer to such
replacement Bank or Banks all of the rights and obligations of such Bank
hereunder (with appropriate provisions for other amounts due to the Bank being
replaced) and such replacement Bank or Banks shall pay to the Bank being so
replaced the amount outstanding of all Subsidiary Loans made by such Bank
hereunder, all as though such replacement Bank or Banks were an assignee or
assignees of such Bank to which such Bank were making an assignment in
accordance with the provisions of Section 10.7.
ARTICLE IV
CONDITIONS OF LENDING
4.1. Conditions Precedent to the Effectiveness of this Agreement.
The making of the Subsidiary Loans hereunder upon the effectiveness of this
Agreement is subject to satisfaction of the conditions precedent that the
Managing Agents shall have received the following, in form and substance
satisfactory to the Managing Agents, and in sufficient copies for each Bank that
requests a copy:
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(a) Certified copies of (i) the resolutions of the Board of
Directors of each Loan Party approving each Loan Document to which it is a
party (as such Loan Document may be amended through the date hereof), and
(ii) all documents evidencing any other necessary corporate action and
required governmental and any third party approvals, licenses and consents
with respect to each Loan Document to which it is a party.
(b) A copy of the certificate of incorporation of each Loan Party
certified as of a recent date by the Secretary of State of such Person's
jurisdiction of incorporation, together with certificates of such official
attesting to the good standing of such Loan Party, and a copy of the
By-Laws of each such Person certified by its Secretary or one of its
Assistant Secretaries.
(c) A certificate of the Secretary or an Assistant Secretary of each
Loan Party certifying the names and true signatures of the officers of
such Loan Party who have been authorized to execute and deliver each Loan
Document to which it is a party and each other document and certificate to
be executed or delivered hereunder on behalf of such Person.
(d) A favorable opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice
President and Deputy General Counsel of Viacom, in substantially the form
of Exhibit E hereto.
(e) A duly executed Parent Facility.
(f) A duly executed Parent Guarantee.
(g) A duly executed VII Guarantee.
4.2. Additional Conditions Precedent to the Making of the Subsidiary
Loans. The effectiveness of this Agreement and the making of the
Subsidiary Loans simultaneously hereunder is subject to the further
conditions precedent that on the date of such Subsidiary Loans the
following statements shall be true :
(a) The Loans under (and as defined in) the Parent Facility shall be
made simultaneously with the making of such Subsidiary Loans.
(b) The Subsidiary Borrower shall have paid all costs, accrued and
unpaid fees and expenses referred to in Sections 3.4 and 10.4 (including,
without limitation, the legal fees and expenses referred to in Section
10.4(a)), in each case to the extent then due and payable.
(c) All Indebtedness (including all theretofore accrued but unpaid
Commitment Fees and interest) of Viacom International and the other
"Subsidiary Borrowers" under the Existing Agreement, and the Existing
Subsidiary Credit
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Agreement shall have been (or shall simultaneously be) either repaid or
refinanced pursuant to the terms of this Agreement.
(d) Before and after giving effect thereto and to the application of
the proceeds therefrom, the representations and warranties of Viacom
contained in the Parent Facility (other than those stated to be made as of
a particular date) are true and correct in all material respects on and as
of such date as though made on and as of such date.
(e) Before and after giving effect thereto and to the application of
the proceeds therefrom, no event has occurred and is continuing, or would
result from the Subsidiary Loans being made on such date, which
constitutes a Default or an Event of Default.
The acceptance by the Subsidiary Borrower of the proceeds of such Subsidiary
Loan shall constitute a representation and warranty by the Subsidiary Borrower
that on the date of such Subsidiary Loan such statements are true.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1. Representations and Warranties in Parent Facility. To induce
the Banks to enter into this Agreement, the Subsidiary Borrower represents and
warrants to the Banks that each of the representations and warranties of Viacom
in the Parent Facility is true and correct.
ARTICLE VI
AFFIRMATIVE COVENANTS
As long as any of the Subsidiary Loans shall remain unpaid or any
Bank shall have any Subsidiary Commitment hereunder, unless otherwise agreed by
the written consent of the Majority Banks:
6.1. Compliance with Laws, Etc. The Subsidiary Borrower shall
comply, and cause each of its Subsidiaries to comply, in all material respects
with all Requirements of Law, all FCC Licenses and Franchises except such
non-compliance as would not have a Material Adverse Effect or result in a
Material Credit Agreement Change.
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6.2. Payment of Taxes, Etc. The Subsidiary Borrower and any
consolidated, combined or unitary group which includes the Subsidiary Borrower
or any of its Subsidiaries shall pay and discharge, and cause each Subsidiary of
the Subsidiary Borrower to pay and discharge, before the same shall become
delinquent, all lawful claims, taxes, assessments and governmental charges or
levies except where contested in good faith, by proper proceedings, and where
adequate reserves therefor have been established on the books of the Subsidiary
Borrower or such Subsidiary in accordance with GAAP.
6.3. Maintenance of Insurance. The Subsidiary Borrower shall
maintain, and cause each of its Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or associations in such amounts
and covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which the
Subsidiary Borrower or such Subsidiary operates. The Subsidiary Borrower will
furnish to the Administrative Agent from time to time such information as may be
requested as to such insurance.
6.4. Preservation of Corporate Existence, Etc. The Subsidiary
Borrower shall preserve and maintain, and cause each of its Subsidiaries to
preserve and maintain, its respective corporate existence; provided, however,
that the corporate existence of any Subsidiary of a Subsidiary Borrower (other
than any Guarantor Subsidiary) may be terminated if, in the good faith judgment
of the board of directors or the chief financial officer of the Subsidiary
Borrower, such termination is in the best interest of the Subsidiary Borrower
and such termination would not have a Material Adverse Effect; and provided
further, however, that Viacom may merge into Viacom International, with Viacom
International as the surviving corporation, provided that upon the effectiveness
of such merger, Viacom International shall assume, pursuant to an instrument
satisfactory to the Managing Agents, the obligations of Viacom under the Parent
Facility and under the other Loan Documents.
6.5. Books and Access. The Subsidiary Borrower shall, and shall
cause each of its Subsidiaries to, keep proper books of record and accounts in
conformity with GAAP, and upon reasonable notice and at such reasonable times
during usual business hours as often as may be reasonably requested, permit
representatives of the Administrative Agent, at its own initiative or at the
request of any Bank, to make inspections of its Properties, to examine its
books, accounts and records and make copies and memoranda thereof and to discuss
its affairs and finances with its officers or directors and independent public
accountants.
6.6. Maintenance of Properties, Etc. The Subsidiary Borrower shall
maintain and preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its Properties which are used or useful in the conduct of its
business in good working order and condition and, from time to time make or
cause to be made all appropriate
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repairs, renewals and replacements, except where the failure to do so would not
have a Material Adverse Effect.
6.7. Application of Proceeds. The Subsidiary Borrower shall use the
proceeds of the Subsidiary Loans for general corporate purposes.
6.8. Reporting Requirements. The Subsidiary Borrower shall furnish
to the Administrative Agent for distribution to the Banks:
(a) from time to time as the Administrative Agent may reasonably
request, copies of such statements, lists of Property, accounts, budgets,
forecasts, reports or information prepared by or for the Subsidiary Borrower or
within the control of the Subsidiary Borrower;
(b) promptly upon the Subsidiary Borrower or any of its Subsidiaries
learning of (i) any Event of Default or any Default, or (ii) any Material
Adverse Change or Material Credit Agreement Change, telephonic or telegraphic
notice specifying the nature of such Event of Default, Default, Material Adverse
Change or Material Credit Agreement Change, including the anticipated effect
thereof, which notice shall be promptly confirmed in writing within five days;
(c) from time to time, such other information and materials as the
Administrative Agent may reasonably request.
ARTICLE VII
NEGATIVE COVENANTS
So long as any of the Subsidiary Loans shall remain unpaid or any
Bank shall have any Subsidiary Commitment hereunder, without the written consent
of the Majority Banks:
7.1. Liens, Etc. The Subsidiary Borrower shall not, directly or
indirectly, create or suffer to exist, or permit any of its Subsidiaries to
create or suffer to exist, any Lien upon or with respect to any of its
Properties, whether now owned or hereafter acquired, or assign, or permit any of
its Subsidiaries to assign, any right to receive income, in each case to secure
or provide for the payment of any Indebtedness of any Person, other than as
permitted under the Parent Facility.
7.2. Transactions with Affiliates. The Subsidiary Borrower shall not
engage in, nor shall it permit any of its Subsidiaries to engage in, any
transaction with an Affiliate of the Subsidiary Borrower or of such Subsidiary
other than as permitted under the Parent Facility.
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7.3. Margin Stock. The Subsidiary Borrower shall not permit more
than twenty-five percent (25%) of the value, within the meaning of Regulation U,
as determined by any reasonable method, of the assets of the Subsidiary Borrower
and its Subsidiaries to be Margin Stock, nor will the Subsidiary Borrower use
the proceeds of any Subsidiary Loan to purchase or carry any Margin Stock in
violation of Regulation U.
7.4. Subsidiary Indebtedness. The Subsidiary Borrower shall not
permit any of its Subsidiaries to incur Indebtedness for borrowed money other
than Indebtedness permitted pursuant to Section 9.6 of the Parent Facility.
7.5. Other Restrictions on Indebtedness. The Subsidiary Borrower
shall not incur Indebtedness for borrowed money maturing earlier than six months
after the Commitment Termination Date other than (a) Commercial Paper, (b) up to
$500 million at any time outstanding (less the aggregate amount outstanding
under 9.6(c) of the Parent Facility scheduled to mature earlier than six months
after the Commitment Termination Date) and on terms no more onerous than the
terms hereof.
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) The Subsidiary Borrower or any other Loan Party shall fail to
pay (i) any principal when due in accordance with the terms and provisions
of this Agreement or any other Loan Document, or (ii) any interest on any
amounts due hereunder or thereunder, or any fee or any other amount due
hereunder or thereunder within three Business Days after the same becomes
due and payable; or
(b) Any representation or warranty made by any Loan Party in this
Agreement or any other Loan Document or by any Loan Party (or any of its
officers) in connection with this Agreement or any other Loan Document
shall prove to have been incorrect in any material respect when made; or
(c) Any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in this Agreement or any other Loan
Document, which failure or change shall remain unremedied for fifteen days
after the earlier of the date on which (i) telephonic or telegraphic
notice thereof shall have been given to the Administrative Agent by the
Subsidiary Borrower pursuant to Section 6.8(b), or (ii) written notice
thereof shall have been given to the Subsidiary Borrower by the
Administrative Agent or any Bank; or
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(d) Any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, or premium or interest on, any Indebtedness in an aggregate
principal amount of $50,000,000 or more (excluding Indebtedness hereunder)
taken together with all other Indebtedness of Viacom or any of its
Subsidiaries (including the Subsidiary Borrower or any of its
Subsidiaries) with respect to which any such failure shall have occurred,
when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise); or any other
event shall occur or condition shall exist under any agreement or
instrument relating to any such Indebtedness, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Indebtedness or to terminate any commitment to lend; or
any such Indebtedness shall be declared to be due and payable, or required
to be prepaid (other than by a regularly scheduled required prepayment),
prior to the stated maturity thereof and, with respect to all of the
foregoing, after the expiration of any applicable grace period or the
giving of any required notice or both; provided, however, that no
extension of any grace period applicable to any such Indebtedness shall be
taken into account for the purposes of this subsection (d); or
(e) There shall occur and be continuing an Event of Default under
(and as defined in) the Parent Facility; or
(f) Viacom, or any of its Material Subsidiaries or any other Loan
Party shall generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors, or any proceedings shall
be instituted by or against Viacom, any of its Material Subsidiaries or
any other Loan Party seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or for a material part
of its Properties employed in its business or any writ, attachment,
execution or similar process shall be issued or levied against a material
part of the Properties employed in its business or any of its
Subsidiaries, and, in the case of any such proceedings instituted against
Viacom, or any of its Material Subsidiaries or any other Loan Party (but
not instituted by it), either such proceedings shall remain undismissed or
unstayed for a period of 60 days or any of the actions sought in such
proceedings shall occur; or Viacom or any of its Material Subsidiaries or
any other Loan Party shall take any corporate action to authorize any of
the actions set forth above in this subsection (f); or
(g) Any order for the payment of money or judgment of any court, not
appealable or not subject to certiorari or appeal (a "Final Judgment"),
which, with other outstanding Final Judgments and any such judgments
against Viacom or any
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of its Subsidiaries other than the Subsidiary Borrower, exceeds an
aggregate of $50,000,000 shall be rendered against the Subsidiary Borrower
or any of its Material Subsidiaries and, within 60 days after entry
thereof, such Final Judgment shall not have been discharged; or
(h) (i) With respect to any Plan, a final determination is made that
a prohibited transaction within the meaning of Section 4975 of the Code or
Section 406 of ERISA occurred which results in direct or indirect
liability of the Subsidiary Borrower or any of its Material Subsidiaries,
(ii) with respect to any Title IV Plan, the filing of a notice to
voluntarily terminate any such plan in a distress termination, (iii) with
respect to any Multiemployer Plan, the Subsidiary Borrower, any of its
Material Subsidiaries or any of its or their ERISA Affiliates shall incur
any Withdrawal Liability, or (iv) with respect to any Qualified Plan, the
Subsidiary Borrower, any of its Material Subsidiaries or any of its or
their ERISA Affiliates shall incur an accumulated funding deficiency or
request a funding waiver from the IRS; provided, however, that the events
listed in clauses (i)-(iv) hereof shall constitute Events of Default only
if the liability, deficiency or waiver request of the Subsidiary Borrower,
any of its Material Subsidiaries or any of its or their ERISA Affiliates,
together with any such liability, deficiency or waiver request of Viacom
or any of its Material Subsidiaries (other than the Subsidiary Borrower),
as finally determined, exceeds $25,000,000 in any case set forth in
clauses (i)-(iv) above, or exceeds $25,000,000 in the aggregate for all
such cases; and, provided further, however, that with respect to the
events listed in clauses (i), (iii) and (iv) hereof there shall be no
Event of Default if the liability of the Subsidiary Borrower, the relevant
Material Subsidiary or the relevant ERISA Affiliate is satisfied in full
or in accordance with the due dates therefor; or
(i) NAI shall fail to own of record and beneficially not less than
51% of the outstanding stock having ordinary voting power to elect a
majority of the board of directors of Viacom and such failure of NAI shall
remain unremedied for fifteen days after the earlier of the date on which
(A) telephonic or telegraphic notice thereof shall have been given to the
Administrative Agent by the Subsidiary Borrower pursuant to Section 6.9,
or (B) written notice thereof shall have been given to the Subsidiary
Borrower by the Administrative Agent or any Bank; or
(j) This Agreement or any other Loan Document shall cease to be
valid or enforceable for any reason in any material respect;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Banks, by notice to the Subsidiary
Borrower, declare the obligation of each Bank to make Subsidiary Loans to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Majority Banks, by notice to the
Subsidiary Borrower, declare all amounts due under this Agreement and all
interest thereon to be forthwith due and payable, whereupon all
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amounts due from the Subsidiary Borrower under this Agreement and all such
interest and all such amounts shall become and be forthwith due and payable;
provided, however, that upon an actual or deemed entry of an order for relief
with respect to the Subsidiary Borrower or any of its Material Subsidiaries
under the federal Bankruptcy Code, (A) the obligation of each Bank to make
Subsidiary Loans to the Subsidiary Borrower shall automatically be terminated
and (B) all amounts due from the Subsidiary Borrower under this Agreement and
all such interest and all such amounts shall automatically and without further
notice become and be due and payable. In addition to the remedies set forth
above, the Administrative Agent may exercise any other remedies provided for by
this Agreement in accordance with the terms hereof or any other remedies
provided by applicable law.
ARTICLE IX
THE MANAGING AGENTS AND THE FACILITY AGENTS
9.1. Authorization and Action. Each Bank hereby appoints and
authorizes each Facility Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to such Facility
Agent by the terms hereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement, no Facility Agent shall be required to exercise any discretion or
take any action, but each shall be required to act or to refrain from acting
(and shall be fully protected in so acting or refraining from acting) upon the
instructions of the Majority Banks (or when expressly required hereunder, all
the Banks), and such instructions shall be binding upon all Banks; provided,
however, that no Facility Agent shall be required to take any action that
exposes such Facility Agent to personal liability or that is contrary to this
Agreement or applicable law. Each Facility Agent agrees to give to each Bank
prompt notice of each notice given to it by the Subsidiary Borrower pursuant to
the terms of this Agreement.
9.2. Managing Agents' and Facility Agents' Reliance, Etc. Neither
the Managing Agents, the Facility Agents, their Affiliates nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by any of them under or in connection with
this Agreement, except for its own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, (i) any Managing Agent or
Facility Agent may consult with legal counsel (including counsel to the
Subsidiary Borrower), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts; (ii) neither the Managing Agents nor the Facility Agents make any
warranty or representation to any Bank and none of them shall be responsible to
any Bank for any statements, warranties or representations made in or in
connection with this Agreement; (iii) neither the Managing Agents nor the
Facility Agents shall have any duty to ascertain or to inquire
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as to the performance or observance of any of the terms, covenants or conditions
of this Agreement on the part of the Subsidiary Borrower or to inspect the
Properties (including the books and records) of the Subsidiary Borrower; (iv)
neither the Managing Agents nor the Facility Agents shall be responsible to any
Bank for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (v) neither the Managing Agents nor the Facility
Agents shall incur liability under or in respect of this Agreement by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telegram, cable or telex) believed by it to be genuine and signed or sent
by the proper party or parties. Neither the Agents nor the Co-Agents shall, in
their respective capacities as such, have any duties under this Agreement other
than those that they have in their capacities as Banks.
9.3. The Bank of New York, Citibank, N.A., ▇▇▇▇▇▇ Guaranty Trust
Company of New York, Bank of America NT&SA, and The Chase Manhattan Bank and
Their Affiliates. With respect to the Subsidiary Commitments of The Bank of New
York, Citibank, N.A., ▇▇▇▇▇▇ Guaranty Trust Company of New York, Bank of America
NT&SA, The Chase Manhattan Bank, respectively, and the Subsidiary Loans made by
each of them, each of The Bank of New York, Citibank, N.A., ▇▇▇▇▇▇ Guaranty
Trust Company of New York, Bank of America NT&SA, and The Chase Manhattan Bank
shall have the same rights and powers under this Agreement as any other Bank and
may exercise the same as though it were not a Managing Agent or Facility Agent,
as the case may be; and the term "Bank" or "Banks" shall, unless otherwise
expressly indicated, include each of The Bank of New York, Citibank, N.A.,
▇▇▇▇▇▇ Guaranty Trust Company of New York, Bank of America NT&SA, and The Chase
Manhattan Bank in their individual capacities. Each of The Bank of New York,
Citibank, N.A., ▇▇▇▇▇▇ Guaranty Trust Company of New York, Bank of America
NT&SA, and The Chase Manhattan Bank and their Affiliates may accept deposits
from, lend money to, act as trustee under indentures of, and generally engage in
any kind of business with, the Subsidiary Borrower, any of its Subsidiaries and
any Person who may do business with or own securities of the Subsidiary Borrower
or any such Subsidiary, all as if The Bank of New York, Citibank, N.A., ▇▇▇▇▇▇
Guaranty Trust Company of New York, Bank of America NT&SA, or The Chase
Manhattan Bank, as the case may be, were not a Managing Agent or a Facility
Agent, as the case may be, and without any duty to account therefor to the
Banks.
9.4. Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Managing Agents, the Facility
Agents, the Arrangers, the Agents, the Co-Agents or any other Bank, and based on
the financial statements referred to in Article VII of the Parent Facility and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Managing
Agents, the Facility Agents, the Arrangers, the Agents, the Co-Agents or any
other Bank and based on such documents and information
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as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement.
9.5. Determinations Under Sections 4.1 and 4.2. For purposes of
determining compliance with the conditions specified in Sections 4.1 and 4.2,
each Bank shall be deemed to have consented to, approved or accepted, or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Banks unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Bank prior to the applicable
Subsidiary Borrowing specifying its objection thereto (unless such objection
shall have been withdrawn by notice to the Administrative Agent to that effect
or such Bank shall have made available to the Administrative Agent such Bank's
ratable portion of such Subsidiary Borrowing).
9.6. Indemnification. Each Bank agrees to indemnify the Managing
Agents, the Facility Agents, the Arrangers and their respective Affiliates, and
their respective directors, officers, employees, agents and advisors (to the
extent not reimbursed by the Subsidiary Borrower), ratably according to such
Bank's Ratable Portion of the Subsidiary Commitments, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements (including, without limitation, fees and
disbursements of legal counsel) of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against, any such Person in any way
relating to or arising out of this Agreement or any action taken or omitted by
any such Person under this Agreement; provided, however, that no Bank shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from any such Person's gross negligence or willful misconduct or from any
violation or alleged violation by any such Person or any other Bank of any law,
rule or regulation or any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) or, with respect
to any Managing Agent or Facility Agent, any conflict or alleged conflict
between its rights and duties in its capacity as such or as a Bank under this
Agreement and any other rights or duties it may have in any other capacity in
which it may act in connection with the consummation of the transactions
contemplated by this Agreement, whether or not such Bank is a party to such
transactions. Without limitation of the foregoing, each Bank agrees to reimburse
any such Person promptly upon demand for its ratable share of any out-of-pocket
expenses (including fees and disbursements of one counsel) incurred by such
Person in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that such Person is not
reimbursed for such expenses by the Subsidiary Borrower.
9.7. Successor Facility Agents. Any Facility Agent may resign at any
time by giving written notice thereof to the Banks and the Subsidiary Borrower
and may be
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removed at any time with or without cause by the Majority Banks. Upon any such
resignation or removal, the Majority Banks shall have the right to appoint a
successor to such Facility Agent. If no successor to such Facility Agent shall
have been so appointed by the Majority Banks, and shall have accepted such
appointment, within 30 days after the retiring Facility Agent's giving of notice
of resignation or the Majority Banks' removal of such retiring Facility Agent,
then such retiring Facility Agent on behalf of the Banks, shall appoint a
successor Facility Agent (which successor Facility Agent shall be a Bank or
another commercial bank organized under the laws of the United States of America
or of any State thereof and having a combined capital and surplus of at least
$50,000,000). Upon the acceptance of any appointment as a Facility Agent
hereunder by any successor Facility Agent, such successor Facility Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Facility Agent, and such retiring Facility Agent
shall be discharged from its duties and obligations under this Agreement. After
any retiring Facility Agent's resignation or removal hereunder, the provisions
of this Article IX shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Facility Agent.
ARTICLE X
MISCELLANEOUS
10.1. Amendments, Etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by the Subsidiary Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing signed by all the Banks and consented to by all of the Banks as defined
under the Parent Facility, do any of the following: (a) waive any of the
conditions specified in Section 4.1 or 4.2; (b) increase the Subsidiary
Commitments of the Banks or subject the Banks to any additional obligations; (c)
change the principal of, or decrease the interest on, any amounts payable
hereunder (or the Parent Guarantee) or reduce the amount of any Commitment Fee
payable to the Banks hereunder or the Parent Guarantee; (d) postpone any date
fixed for any scheduled payment of any Commitment Fee, or scheduled payment of
principal of, or interest on, any amounts, payable hereunder or under the Parent
Guarantee; (e) change the definition of Majority Banks; or (f) amend this
Section 10.1; and provided further, however, that no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Persons required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement.
10.2. Notices, Etc. Except as otherwise set forth herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopy or cable communication) and mailed,
telegraphed, telexed, telecopied,
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cabled or delivered by hand, if to the Subsidiary Borrower, c/o Viacom Inc.,
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer; if to any Bank,
at its Domestic Lending Office specified opposite its name on Schedule I; and if
to the Administrative Agent, at its address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇
6, New York, New York 10043, Attention: ▇▇▇▇▇ ▇▇▇▇▇; or, as to the Subsidiary
Borrower, any Bank or the Administrative Agent, at such other address as shall
be designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Subsidiary Borrower and the Administrative Agent. All
such notices and communications shall, when mailed, telegraphed, telexed,
telecopied, cabled or delivered, be effective when deposited in the mails,
delivered to the telegraph company, confirmed by telex answerback, telecopied
with confirmation of receipt, delivered to the cable company or delivered by
hand to the addressee or its agent, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II or IX shall
not be effective until received by the Administrative Agent.
The Subsidiary Borrower hereby authorizes Viacom to deliver any
written notices or requests contemplated hereunder on its behalf, and each other
party hereto may rely upon any such notice or request from Viacom from time to
time, until notice to the contrary is received in writing from the Subsidiary
Borrower.
10.3. No Waiver; Remedies. No failure on the part of any Bank, the
Managing Agents or any Facility Agent to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
10.4. Costs; Expenses; Indemnities. (a) The Subsidiary Borrower
agrees to pay on demand all costs and expenses in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the other Loan Documents and the other documents to be delivered
hereunder or thereunder, including, without limitation, the specified reasonable
fees and out-of-pocket expenses of one counsel to the Managing Agents and the
Facility Agents and the Arrangers with respect thereto and with respect to
advising the Managing Agents, the Facility Agents and the Arrangers as to their
rights and responsibilities under this Agreement, and all costs and expenses of
the Managing Agents, the Facility Agents and the Banks (including, without
limitation, reasonable counsel fees and expenses) in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the other Loan Documents and the other documents to be delivered
hereunder and thereunder.
(b) The Subsidiary Borrower agrees to defend, indemnify and hold
harmless each of the Managing Agents, the Facility Agents, the Arrangers and the
Banks
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and their respective affiliates and their respective directors, officers,
attorneys, agents, employees, successors and assigns (each, an "Indemnified
Person") from and against any and all liabilities, obligations, losses, damages,
penalties, actions, claims, judgments, suits, costs, expenses and disbursements
of any kind or nature whatsoever (including, without limitation, fees and
disbursements of counsel of the Managing Agents, the Facility Agents, the
Arrangers or the Banks) which may be incurred by or asserted or awarded against
any Indemnified Person, in each case arising in any manner of or in connection
with or by reason of the Merger, the Merger Agreement, the Tender Offer, this
Agreement, the other Loan Documents, the Subsidiary Commitments or any
undertakings in connection therewith, or the proposed or actual application of
the proceeds of the Subsidiary Loans (all of the foregoing collectively, the
"Indemnified Liabilities") and will reimburse each Indemnified Person on a
current basis for all expenses (including counsel fees as they are incurred by
such party) in connection with investigating, preparing or defending any such
action, claim or suit, whether or not in connection with pending or threatened
litigation irrespective of whether such Indemnified Person is designated a party
thereto; provided that the Subsidiary Borrower shall not have any liability
hereunder to any Indemnified Person with respect to Indemnified Liabilities
which are determined by a final and nonappealable judgment of a court of
competent jurisdiction to have arisen primarily from the gross negligence or
willful misconduct of such Indemnified Person; and provided further, that if the
Subsidiary Borrower has determined in good faith that such Indemnified
Liabilities were primarily the result of such Indemnified Person's gross
negligence or willful misconduct, they shall not be obligated to pay such
Indemnified Liabilities until a court of competent jurisdiction has determined
whether such Indemnified Person acted with gross negligence or willful
misconduct. If for any reason the foregoing indemnification is unavailable to an
Indemnified Person or insufficient to hold an Indemnified Person harmless, then
each Subsidiary Borrower shall contribute to the amount paid or payable by such
Indemnified Person as a result of any Indemnified Liability in such proportion
as is appropriate to reflect not only the relative benefits received by the
Subsidiary Borrower and each Managing Agent, each Facility Agent, each Arranger
and each Bank, but also the relative fault of the Subsidiary Borrower and each
Managing Agent, each Facility Agent, each Arranger and each Bank, as well as any
other relevant equitable considerations. The foregoing indemnity shall be in
addition to any rights that any Indemnified Person may have at common law or
otherwise, including, but not limited to, any right to contribution.
(c) If any Bank receives any payment of principal of, or is subject
to a conversion of, any Eurodollar Rate Loan other than on the last day of an
Interest Period relating to such Subsidiary Loan, as a result of any payment or
conversion made by the Subsidiary Borrower or acceleration of the maturity of
the amounts due under this Agreement pursuant to Section 8.1 or for any other
reason, the Subsidiary Borrower shall, upon demand by such Bank (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Bank any amounts required to compensate such Bank for any
additional losses, costs or expenses which it may reasonably incur as a result
of such payment or conversion, including, without limitation,
-35-
any loss (excluding loss of the margin payable in accordance with Section 3.2 on
the amount of principal so paid, or any loss), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Bank to fund or maintain such Subsidiary Loan. The foregoing obligations of
the Subsidiary Borrower contained in paragraphs (a), (b) and (c) of this Section
10.4, and the obligations of the Subsidiary Borrower contained in Sections 3.5
and 3.7, shall survive the payment of the Subsidiary Loans.
10.5. Right of Set-Off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 8.1 to authorize the Administrative
Agent to declare all amounts under this Agreement due and payable pursuant to
the provisions of Section 8.1 or the automatic acceleration of such amounts
pursuant to the proviso to that Section, each Bank 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 Bank
to or for the credit or the account of the Subsidiary Borrower against any and
all of the obligations of the Subsidiary Borrower now or hereafter existing
under this Agreement irrespective of whether or not such Bank shall have made
any demand under this Agreement and although such obligations may be unmatured.
Each Bank agrees promptly to notify the Subsidiary Borrower after any such
set-off and application made by such Bank; provided, however, that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of each Bank under this Section 10.5 are in addition to
any other rights and remedies (including, without limitation, any other rights
of set-off) which such Bank may have.
10.6. Binding Effect. Subject to Article IV hereunder, this
Agreement shall become effective when it shall have been executed by the
Subsidiary Borrower, each of the Managing Agents, each of the Facility Agents
and each of the Arrangers and when the Managing Agents shall have been notified
by each of the Banks that such Bank has executed it and thereafter shall be
binding upon and inure to the benefit of the Subsidiary Borrower, each of the
Managing Agents, each of the Facility Agents, each of the Arrangers and each of
the Banks and their respective successors and assigns, except that (i) the
Subsidiary Borrower shall have no right to assign its rights or obligations
hereunder or any interest herein (and any such purported assignment shall be
void) without the prior consent of the Banks (x) except in connection with any
(x) merger or consolidation permitted under Section 9.2 of the Parent Facility
or (y) merger, consolidation or sale of assets consented to by the Managing
Banks and (ii) no Bank may sell, transfer, assign, pledge or grant
participations in any of its Subsidiary Loans or any of its rights or
obligations hereunder except in accordance with Section 10.7 or as expressly
required hereunder.
10.7. Assignments and Participations; Additional Banks. (a) Any Bank
may, at any time, with notice substantially in the form of Exhibit F hereto
(each, a
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"Notice of Assignment and Acceptance") delivered to the Administrative Agent for
its acceptance and recording, together with a recording fee in the amount of
$3,000, assign all or any part of its rights and obligations and delegate its
duties under this Agreement (A) to any other Bank or any affiliate of any Bank
which actually controls, is controlled by, or is under common control with such
Bank or to any Federal Reserve Bank (in either case without limitation as to
amount), or (B) with the prior consent of the Subsidiary Borrower (such consent
not to be unreasonably withheld), to any other Person (but if in part, in a
minimum amount that, taken together with amounts assigned to the same transferee
under the Parent Facility, equals at least $25,000,000 or, if less, the balance
of such Bank's Subsidiary Commitment); provided, however, that each assigning
Bank must assign an identical percentage of its Subsidiary Loans and Subsidiary
Loan Commitments under this Agreement and Term Loans and Term Loan Commitment
under the Parent Facility.
(b) Any Bank may at any time sell or grant participations in its
Subsidiary Commitment, or the obligations owing to or from any Person existing
under this Agreement; provided, however, that (i) as between such Bank and the
Subsidiary Borrower, the existence of such participations shall not give rise to
any direct rights or obligations between the Subsidiary Borrower and the
participants; (ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations; (iii) the Subsidiary
Borrower, the Managing Agents, the Facility Agents and the other Banks shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement; and (iv) no such sale or
grant of a participation shall, without the consent of the Subsidiary Borrower,
require the Subsidiary Borrower to file a registration statement with the
Securities and Exchange Commission or apply to qualify the Subsidiary
Commitments with respect to the Subsidiary Borrower or the Subsidiary Loans
under the securities laws of any state.
(c) If an assignment is made by any Bank in accordance with the
provisions of paragraph (a) above, upon acceptance and recording by the
Administrative Agent, and approval by the Subsidiary Borrower, where applicable,
of each Notice of Assignment and Acceptance, (i) the assignee thereunder shall
become a party to this Agreement and the Subsidiary Borrower shall release and
discharge the assigning Bank from its duties, liabilities or obligations under
this Agreement to the extent the same are so assigned and delegated by such
Bank, provided that no such consent, release or discharge shall have effect
until the Subsidiary Borrower shall have received a fully executed copy of the
Notice of Assignment and Acceptance relating to such assignment, and (ii)
Schedule II shall be deemed amended to give effect to such assignment. The
Subsidiary Borrower agrees that each such disposition will give rise to a direct
obligation of the Subsidiary Borrower to any such assignee.
(d) The Subsidiary Borrower authorizes each Bank to disclose to any
prospective assignee or participant and any assignee or participant any and all
financial information in such Bank's possession concerning the Subsidiary
Borrower and this
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Agreement; provided, however, that, prior to any such disclosure, the assignee
or participant or proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information relating to the Subsidiary
Borrower received by it from such Bank in accordance with Section 10.11.
(e) Any Bank which sells or grants participations in any Subsidiary
Loans or its Subsidiary Commitment may not grant to the participants the right
to vote other than on amendments, consents, waivers, modifications or other
actions which change the principal amount of, postpone the scheduled maturity
of, or decrease the interest rates applicable to, any Subsidiary Loans under, or
increase the amount of, such Subsidiary Commitment (except with respect to
participating Affiliates actually controlled by, controlling or under common
control with, such Bank); provided, however, that as between the Bank and the
Subsidiary Borrower, only the Bank shall be entitled to cast such votes.
(f) No participant in any Bank's rights or obligations shall be
entitled to receive any greater payment under Section 3.5 or 3.7 than such Bank
would have been entitled to receive with respect to the rights participated, and
no participation shall be sold or granted to any Person as to which the events
specified in Section 3.6 have occurred on or before the date of participation.
(g) The Administrative Agent shall maintain at its address referred
to in Section 10.2 a copy of each Notice of Assignment and Acceptance received
by it and a register, containing the terms of each Notice of Assignment and
Acceptance, for the recordation of the names and addresses of each Bank and the
Subsidiary Commitment of each Bank, and principal amount of the Subsidiary Loans
owing to each Bank, from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Subsidiary Borrower, the Banks, the Facility Agents and the
Managing Agents may treat each Person whose name is recorded in the Register as
a Bank hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Subsidiary Borrower, any Bank, any Facility
Agent or any Managing Agent at any reasonable time and from time to time upon
reasonable prior notice.
10.8. Majority Banks are Third Party Beneficiaries. It is the
intention of the parties hereto that no third party shall be deemed to be a
third party beneficiary or have any rights under or by virtue of this Agreement
except that the Banks under the Parent Facility shall be third party
beneficiaries of those provisions of this Agreement pursuant to which they are
given the right to vote with respect to certain matters under this Agreement.
10.9. GOVERNING LAW; SEVERABILITY. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS
-▇▇-
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇. WHEREVER POSSIBLE, EACH PROVISION OF THIS AGREEMENT
SHALL BE INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER
APPLICABLE LAW, BUT IF ANY PROVISION OF THIS AGREEMENT SHALL BE PROHIBITED BY OR
INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE INEFFECTIVE TO THE EXTENT
OF SUCH PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF SUCH
PROVISION OR THE REMAINING PROVISIONS OF THIS AGREEMENT.
10.10. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY DOCUMENT RELATED HERETO MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH SUBSIDIARY BORROWER
HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(b) The Subsidiary Borrower irrevocably consents to the service of
process of any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by registered or certified mail, postage prepaid,
to it at its address specified for notices in or pursuant to Section 10.2
hereof, such service to become effective 30 days after such mailing.
(c) Nothing contained in this Section 10.10 shall affect the right
of any Managing Agent, any Facility Agent or any Bank to serve process in any
other manner permitted by law or commence legal proceedings or otherwise proceed
against the Subsidiary Borrower in any other jurisdiction.
(d) Each of the parties hereto waives any right it may have to trial
by jury in any proceeding arising out of this Agreement.
10.11. Confidentiality. Each Bank, each Managing Agent and each
Facility Agent agrees to keep confidential information obtained by it pursuant
hereto (or otherwise obtained from the Subsidiary Borrower in connection with
this Agreement) confidential in accordance with such Person's customary
practices and agrees that it will only use such information in connection with
the transactions contemplated by this
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Agreement and not disclose any of such information other than (i) to such
Person's employees, counsel, representatives and agents who are or are expected
to be involved in the evaluation of such information in connection with the
transactions contemplated by this Agreement and who in each case agree to be
bound by the provisions of this sentence, (ii) to the extent that disclosure by
such Person is required, or to the extent that such Person has been advised by
counsel that disclosure is required, in order to comply with any law, regulation
or judicial order or requested or required by bank regulators or auditors or
other Governmental Authority, (iii) to assignees or participants of the
Subsidiary Loans or Subsidiary Commitments or potential assignees or
participants of the Subsidiary Loans or Subsidiary Commitments who in each case
agree in writing to be bound by the provisions of this sentence or (iv) to the
extent that such information has otherwise been disclosed or made public other
than by such Person, or such Person's employees, counsel, representatives or
agents, in violation of this Section 10.11.
10.12. Section Titles. The Section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
10.13. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed as of the date first above written.
VIACOM INTERNATIONAL INC., as Subsidiary
Borrower
By:_________________________________________
Name:
Title:
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Managing Agents
THE BANK OF NEW YORK, as Managing Agent,
the Documentation Agent and a Bank
By:_________________________________________
Name:
Title:
CITIBANK, N.A., as Managing Agent, the
Administrative Agent and a Bank
By:_________________________________________
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, as Managing Agent and a Bank
By:_________________________________________
Name:
Title:
BANK OF AMERICA NT&SA, as Managing
Agent, a Syndication Agent and a Bank
By:_________________________________________
Name:
Title:
-▇▇-
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ BANK, as Managing
Agent and a Bank
By:_________________________________________
Name:
Title:
-▇▇-
▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ BRANCH,
as Agent and a Bank
By:_________________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as Agent and a
Bank
By:_________________________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as Agent and a Bank
By:_________________________________________
Name:
Title:
BARCLAYS BANK PLC, as Agent and a Bank
By:_________________________________________
Name:
Title:
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CANADIAN IMPERIAL BANK OF
COMMERCE, as Agent and a Bank
By:_________________________________________
Name:
Title:
CREDIT LYONNAIS, NEW YORK BRANCH, as
Agent and a Bank
By:_________________________________________
Name:
Title:
THE DAI-ICHI KANGYO BANK LTD., NEW
YORK BRANCH, as Agent and a Bank
By:_________________________________________
Name:
Title:
-▇▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ AND/OR
CAYMAN ISLANDS BRANCH, as Agent and a
Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent and a Bank
By:_________________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON, as
Agent and a Bank
By:_________________________________________
Name:
Title:
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THE FUJI BANK, LIMITED, as Agent and a Bank
By:_________________________________________
Name:
Title:
GULF INTERNATIONAL BANK, as Agent and a
Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LTD., as
Agent and a Bank
By:_________________________________________
Name:
Title:
LTCB TRUST COMPANY, as Agent and a
Bank
By:_________________________________________
Name:
Title:
-▇▇-
▇▇▇▇▇▇ ▇▇▇▇, N.A., as Agent and a Bank
By:_________________________________________
Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORP, as Agent and a Bank
By:_________________________________________
Name:
Title:
NATIONSBANK OF TEXAS N.A., as Agent and a
Bank
By:_________________________________________
Name:
Title:
ROYAL BANK OF CANADA, as Agent and a
Bank
By:_________________________________________
Name:
Title:
THE SAKURA BANK, LTD, as Agent and a Bank
By:_________________________________________
Name:
Title:
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THE SANWA BANK, LTD., as Agent and a Bank
By:_________________________________________
Name:
Title:
SOCIETE GENERALE, NEW YORK BRANCH,
as Agent and a Bank
By:_________________________________________
Name:
Title:
THE TOKAI BANK, LIMITED, as Agent and as a
Bank
By:_________________________________________
Name:
Title:
TORONTO DOMINION (NEW YORK), INC., as
Agent and a Bank
By:_________________________________________
Name:
Title:
UNION BANK, as Agent and a Bank
By:_________________________________________
Name:
Title:
-49-
Co-Agents
BANKERS TRUST COMPANY, as Co-Agent and
a Bank
By:_________________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as Co-Agent
and a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, as Co-Agent and a Bank
By:_________________________________________
Name:
Title:
-▇▇-
▇▇▇▇▇ ▇▇▇▇ (f.k.a. NATWEST BANK N.A.),
as Co-Agent and a Bank
By:_________________________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH, as Co-Agent and a Bank
By:_________________________________________
Name:
Title:
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH, as Co-Agent and a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
-▇▇-
▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇, as a Bank
By:_________________________________________
Name:
Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR, as a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
BANQUE NATIONALE DE PARIS, as a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
-▇▇-
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ BRANCH, as
Agent and a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
BAYERISCHE VEREINSBANK AG, as a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE,
as a Bank
By:_________________________________________
Name:
Title:
-53-
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENE, as a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
FIRST HAWAIIAN BANK, as a Bank
By:_________________________________________
Name:
Title:
HIBERNIA NATIONAL BANK, as a Bank
By:_________________________________________
Name:
Title:
LLOYDS BANK, as a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
-54-
PNC BANK, as a Bank
By:_________________________________________
Name:
Title:
▇▇▇▇▇ NATIONAL BANK, as a Bank
By:_________________________________________
Name:
Title:
THE TOYO TRUST & BANKING CO. LTD., as a
Bank
By:_________________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME
RATE INCOME TRUST, as a Bank
By:_________________________________________
Name:
Title:
-55-
▇▇▇▇▇ FARGO BANK, N.A., as a Bank
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
THE YASUDA TRUST & BANKING CO., LTD,
as a Bank
By:_________________________________________
Name:
Title:
-▇▇-
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING FUND,
INC.
By:_________________________________________
Name:
Title:
-57-
Syndications Agents
▇▇ ▇▇▇▇▇▇ SECURITIES INC., as a Syndication
Agent
By:_________________________________________
Name:
Title:
BANK OF AMERICA NT&SA, as a
Syndication Agent
By:_________________________________________
Name:
Title:
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