EXHIBIT 10(cc)
CONFORMED COPY
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$1,500,000,000
FIVE-YEAR CREDIT AGREEMENT
among
VIACOM INC.,
VIACOM INTERNATIONAL INC.,
THE SUBSIDIARY BORROWERS PARTIES HERETO,
THE LENDERS NAMED HEREIN,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
as Syndication Agent
and
BANK OF AMERICA, N.A. and FLEET NATIONAL BANK,
as Co-Documentation Agents
Dated as of March 7, 2001
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▇▇ ▇▇▇▇▇▇, A DIVISION OF CHASE SECURITIES INC.
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
as Joint Lead Arrangers
▇▇ ▇▇▇▇▇▇, A DIVISION OF CHASE SECURITIES INC.,
as Sole Bookrunner
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.......................................................1
SECTION 1.1. Defined Terms..........................................1
SECTION 1.2. Terms Generally.......................................21
ARTICLE II THE CREDITS.....................................................23
SECTION 2.1. Commitments...........................................23
SECTION 2.2. Revolving Credit Loans; Competitive Loans.............23
SECTION 2.3. Competitive Bid Procedure.............................24
SECTION 2.4. Revolving Credit Loan Borrowing Procedure.............27
SECTION 2.5. Repayment of Loans....................................27
SECTION 2.6. Swingline Loans.......................................28
SECTION 2.7. Letters of Credit.....................................31
SECTION 2.8. Conversion and Continuation Options...................35
SECTION 2.9. Fees..................................................36
SECTION 2.10. Interest on Loans; Eurocurrency Tranches; Etc........37
SECTION 2.11. Default Interest.....................................38
SECTION 2.12. Alternate Rate of Interest...........................38
SECTION 2.13. Termination, Reduction and Increase of Commitments...39
SECTION 2.14. Optional Prepayments of Revolving Credit Loans.......42
SECTION 2.15. Reserve Requirements; Change in Circumstances........42
SECTION 2.16. Indemnity............................................44
SECTION 2.17. Pro Rata Treatment; Funding Matters; Evidence
of Debt..............................................45
SECTION 2.18. Sharing of Setoffs...................................47
SECTION 2.19. Payments.............................................48
SECTION 2.20. Taxes................................................48
SECTION 2.21. Termination or Assignment of Commitments Under
Certain Circumstances................................50
SECTION 2.22. Currency Equivalents.................................51
SECTION 2.23. Judgment Currency....................................52
ARTICLE III REPRESENTATIONS AND WARRANTIES.................................53
SECTION 3.1. Corporate Existence...................................53
SECTION 3.2. Financial Condition...................................53
SECTION 3.3. Litigation............................................54
SECTION 3.4. No Breach, etc........................................54
SECTION 3.5. Corporate Action......................................55
SECTION 3.6. Approvals.............................................55
SECTION 3.7. ERISA.................................................55
SECTION 3.8. Taxes.................................................55
SECTION 3.9. Investment Company Act................................55
SECTION 3.10. Environmental........................................56
SECTION 3.11. Material Subsidiaries................................56
ARTICLE IV CONDITIONS OF EFFECTIVENESS AND LENDING.........................56
SECTION 4.1. Effectiveness.........................................56
SECTION 4.2. Initial Loans to Subsidiary Borrowers.................56
SECTION 4.3. All Credit Events.....................................57
ARTICLE V COVENANTS........................................................58
SECTION 5.1. Financial Statements..................................58
SECTION 5.2. Corporate Existence, Etc..............................60
SECTION 5.3. Insurance.............................................61
SECTION 5.4. Prohibition of Fundamental Changes....................61
ii
SECTION 5.5. Limitation on Liens...................................62
SECTION 5.6. Limitation on Subsidiary Indebtedness.................63
SECTION 5.7. Consolidated Coverage Ratio...........................64
SECTION 5.8. Use of Proceeds.......................................64
SECTION 5.9. Transactions with Affiliates..........................64
ARTICLE VI EVENTS OF DEFAULT...............................................64
ARTICLE VII THE AGENTS.....................................................67
ARTICLE VIII GUARANTEES....................................................70
SECTION 8.1. Viacom Guarantee......................................70
SECTION 8.2. Viacom International Guarantee........................73
ARTICLE IX MISCELLANEOUS...................................................76
SECTION 9.1. Notices...............................................76
SECTION 9.2. Survival of Agreement.................................77
SECTION 9.3. Binding Effect........................................77
SECTION 9.4. Successors and Assigns................................77
SECTION 9.5. Expenses; Indemnity...................................81
SECTION 9.6. Right of Setoff.......................................82
SECTION 9.7. APPLICABLE LAW........................................82
SECTION 9.8. Waivers; Amendment....................................83
SECTION 9.9. Entire Agreement......................................84
SECTION 9.10. Waiver of Jury Trial.................................84
SECTION 9.11. Severability.........................................84
SECTION 9.12. Counterparts.........................................84
SECTION 9.13. Headings.............................................84
SECTION 9.14. Jurisdiction; Consent to Service of Process..........84
iii
SECTION 9.15. Confidentiality......................................85
SECTION 9.16. Waiver of Notice of Termination Period...............86
iv
ANNEXES
Annex I Pricing Grid
Annex II Certain Canadian Facility Provisions
EXHIBITS
Exhibit A Administrative Questionnaire
Exhibit B-1 Form of Competitive Bid Request
Exhibit B-2 Form of Notice of Competitive Bid Request
Exhibit B-3 Form of Competitive Bid
Exhibit B-4 Form of Borrowing Request
Exhibit B-5 Form of Swingline Borrowing Request
Exhibit B-6 Form of Notice of Designated Letter of Credit
Exhibit B-7 Form of Subsidiary Borrower Designation
Exhibit B-8 Form of Subsidiary Borrower Request
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Confidentiality Agreement
Exhibit E Form of Closing Certificate
Exhibit F Form of Issuing Lender Agreement
Exhibit G Form of New Lender Supplement
Exhibit H Form of Commitment Increase Letter
SCHEDULES
Schedule 1.1 Commitments; Addresses for Notices
Schedule 1.1(a) Guarantees
Schedule 5.6 Subsidiary Indebtedness
v
1
FIVE-YEAR CREDIT AGREEMENT entered into as of March 7, 2001, among
VIACOM INC., a Delaware corporation ("Viacom"), each Subsidiary Borrower (as
herein defined); VIACOM INTERNATIONAL INC., a Delaware corporation ("Viacom
International"); the lenders whose names appear on Schedule 1.1 hereto or who
subsequently become parties hereto as provided herein (the "Lenders"); THE CHASE
MANHATTAN BANK, a New York banking corporation ("Chase"), as administrative
agent for the Lenders; ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC., a New York corporation, as
syndication agent for the Lenders (in such capacity, the "Syndication Agent");
and FLEET NATIONAL BANK, a national banking corporation, and BANK OF AMERICA,
N.A., a national banking corporation, as co-documentation agents for the Lenders
(in such capacity, the "Co-Documentation Agents").
W I T N E S S E T H :
WHEREAS, Viacom has requested that the Lenders provide extensions of
credit to it and to certain Subsidiary Borrowers to be used for general
corporate purposes (including, without limitation, acquisitions and commercial
paper backup), which extensions of credit shall enable the Borrowers (as herein
defined) to borrow loans in an aggregate amount not to exceed $1.50 billion
(except as increased or reduced pursuant to Section 2.13) on a revolving credit
basis on and after the Closing Date (as herein defined) and prior to the
Revolving Credit Maturity Date (as herein defined); and
WHEREAS, Viacom has requested that the Lenders provide a
multi-currency borrowing option in an aggregate principal amount not to exceed
$1.00 billion (except as increased or reduced pursuant to Section 2.13), which
(A) the Lenders (excluding the US-Canadian Lenders (as defined herein)) will
make available to the Borrowers (excluding the Canadian Borrowers (as defined
herein)) with sublimits as follows: (i) Euros (as defined herein), $500 million,
(ii) Sterling (as defined herein), $500 million and (iii) Yen (as defined
herein), $300 million, and (B) the US-Canadian Lenders will make available up to
the Canadian Dollar equivalent of $300 million as a separate tranche to the
Canadian Borrowers in Canadian Dollars and to any Borrower (excepting the
Canadian Borrowers) in Dollars.
WHEREAS, the Lenders are willing to extend credit to the Borrowers
on the terms and subject to the conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
2
"ABR Loan" shall mean (a) any Revolving Credit Loan bearing interest
at a rate determined by reference to the Alternate Base Rate in accordance with
the provisions of Article II and (b) any ABR Swingline Loan.
"ABR Revolving Loan" shall mean any Revolving Credit Loan, which is
an ABR Loan.
"ABR Swingline Exposures" shall mean at any time the aggregate
principal amount at such time of the outstanding ABR Swingline Loans. The ABR
Swingline Exposure of any Lender at any time shall mean its Revolving Credit
Percentage of the aggregate ABR Swingline Exposures at such time.
"ABR Swingline Loan" shall have the meaning assigned to such term in
Section 2.6(a).
"ABR US$-Canadian Loans" shall mean any US$-Canadian Loan bearing
interest at the Alternate Base Rate.
"Absolute Rate Loan" shall mean any Competitive Loan bearing
interest at a fixed percentage rate per annum (expressed in the form of a
decimal rounded to no more than four decimal places) specified by the Lender
making such Loan in its Competitive Bid.
"Administrative Agent" shall mean Chase, together with its
affiliates, as an arranger of the Commitments and as the administrative agent
for the Lenders and the US-Canadian Lenders (with respect to US$-Canadian Loans)
under this Agreement, and any successor thereto pursuant to Article VII.
"Administrative Agent Fee Letter" shall mean the Fee Letter with
respect to this Agreement between Viacom and the Administrative Agent, as
amended, supplemented or otherwise modified from time to time.
"Administrative Agent's Fees" shall have the meaning assigned to
such term in Section 2.9(c).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A hereto.
"Affiliate" shall mean, as to Viacom, any Person, which directly or
indirectly controls, is under common control with or is controlled by Viacom. As
used in this definition, "control" (including, with correlative meanings,
"controlled by" and "under common control with") shall mean possession, directly
or indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise); provided that, in any event, any
Person which owns directly or indirectly 10% or more of the securities having
ordinary voting power for the election of directors or other governing body of a
corporation or 10% or more of the partnership or other ownership interests of
any other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person. Notwithstanding the
foregoing, (a) no individual shall be deemed to be an Affiliate of Viacom solely
by reason of his
3
or her being an officer, director or employee of Viacom or any of its
Subsidiaries and (b) Viacom International and Viacom and their Subsidiaries
shall not be deemed to be Affiliates of each other, unless expressly stated to
the contrary.
"Agents" shall mean the collective reference to the Administrative
Agent, the Co-Documentation Agents, the Joint Lead Arrangers, the Sole
Bookrunner, and the Syndication Agent.
"Aggregate LC Exposure" shall mean, at any time, the sum of (a) the
aggregate undrawn amount of all Letters of Credit outstanding at such time and
(b) the aggregate amount which has been drawn under Letters of Credit but for
which the applicable Issuing Lender or the Lenders, as the case may be, have not
been reimbursed by Viacom or the relevant Subsidiary Borrower at such time.
"Agreement" shall mean this Five-Year Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by the Lender serving as the Administrative Agent as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced as effective; and
"Federal Funds Effective Rate" shall mean, for any day, the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by it. If for
any reason the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance with
the terms thereof, the Alternate Base Rate shall be the Prime Rate until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Eurocurrency Margin" shall mean the "Applicable
Eurocurrency Margin" determined in accordance with the Pricing Grid set forth in
Annex I hereto.
"Applicable Facility Fee Rate" shall mean the "Applicable Facility
Fee Rate" determined in accordance with the Pricing Grid set forth in Annex I
hereto.
"Applicable LC Fee Rate" shall mean (a) with respect to Financial
Letters of Credit, the "Applicable Financial LC Fee Rate" determined in
accordance with the Pricing Grid set forth in Annex I hereto and (b) with
respect to Non-Financial Letters of Credit, the
4
"Applicable Non-Financial LC Fee Rate" determined in accordance with the Pricing
Grid set forth in Annex I hereto.
"Applicable Utilization Fee Rate" shall mean the "Applicable
Utilization Fee Rate" determined in accordance with the Pricing Grid set forth
in Annex I hereto.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit C.
"Blockbuster Event" means the sale or deconsolidation of Blockbuster
Inc. from Viacom, which sale or deconsolidation shall be substantially
non-recourse to Viacom and Viacom International.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Bonds" shall have the meaning assigned to such term in Section
8.2(g).
"Borrower" shall mean, as applicable, Viacom or the relevant
Subsidiary Borrower (including the relevant Canadian Borrower for all purposes
other than Article II and Annex II).
"Borrowing Request" shall mean a request made pursuant to Section
2.4 in the form of Exhibit B-4.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurocurrency Loan, the term "Business Day" shall also exclude
any day on which banks are not open for international business (including
dealings in Dollar deposits) in the London interbank market; provided further,
that, when used in connection with a Eurocurrency Loan denominated in Sterling,
the term "Business Day" shall also exclude any day on which banks are not open
for international business (including dealings in Dollar deposits) in the Paris
interbank market.
"Canadian Administrative Agent" shall have the meaning assigned to
such term in Annex II hereto.
"Canadian Borrower" shall have the meaning assigned to such term in
Annex II hereto.
"Canadian Commitments" shall have the meaning assigned to such term
in Annex II hereto.
"Canadian Dollars" or "C$" shall have the meaning assigned to such
term in Annex II hereto.
5
"Canadian Lending Office" shall have the meaning assigned to such
term in Annex II hereto.
"C$ Loan" shall have the meaning assigned to such term in Annex II
hereto.
"Capital Lease Obligations" of any Person shall mean the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property (other than
satellite transponders), or a combination thereof, which obligations are
required to be classified and accounted for as capital leases on a balance sheet
of such Person under GAAP and, for the purposes of this Agreement, the amount of
such obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.
"Capital Stock" shall mean any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants or options to purchase any of the
foregoing.
"Chase" shall have the meaning assigned to such term in the preamble
to this Agreement.
"Closing Certificate" shall mean a certificate, substantially in the
form of Exhibit E.
"Closing Date" shall mean March 7, 2001.
"Code" shall mean the Internal Revenue Code of 1986, as the same may
be amended from time to time.
"Co-Documentation Agents" shall have the meaning assigned to such
term in the preamble hereto.
"Commitments" shall mean the Revolving Commitments and the Canadian
Commitments.
"Commitment Increase Date" shall have the meaning assigned to such
term in Section 2.13(e).
"Commitment Increase Letter" shall have the meaning assigned to such
term in Section 2.13(e) and shall be substantially in the form of Exhibit H.
"Commitment Utilization Percentage" shall mean on any day the
percentage equivalent to a fraction (i) the numerator of which is the sum of (A)
the Total Revolving Facility Exposure, including the aggregate outstanding
principal amount of Letters of Credit, Swingline Loans and Competitive Loans,
and (B) the Total Canadian Facility Exposure and (ii) the denominator of which
is the sum of the Total Revolving Commitment and the Total Canadian Commitment
(or, on any day after termination of the Commitments, the Total Revolving
6
Commitment and the Total Canadian Commitment in effect immediately preceding
such termination).
"Communications Act" shall mean the Communications Act of 1934, as
amended.
"Competitive Bid" shall mean an offer to make a Competitive Loan
pursuant to Section 2.3.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made
pursuant to Section 2.3(b), (a) in the case of a Eurocurrency Competitive Loan,
the Margin, and (b) in the case of an Absolute Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to
Section 2.3 in the form of Exhibit B-1.
"Competitive Loan" shall mean a Loan from a Lender to a Borrower
pursuant to the bidding procedure described in Section 2.3. Each Competitive
Loan shall be a Eurocurrency Competitive Loan or an Absolute Rate Loan and,
subject to Section 2.3(a), may be denominated in Dollars or a Foreign Currency.
"Compliance Certificate" shall have the meaning assigned to such
term in Section 5.1.
"Confidential Information" shall have the meaning assigned to such
term in Section 9.15(a).
"Confidentiality Agreement" shall mean a confidentiality agreement
substantially in the form of Exhibit D, with such changes as Viacom may approve.
"Consolidated Coverage Ratio" shall mean, for any period, the ratio
of (a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense
for such period.
"Consolidated EBITDA" shall mean, with respect to Viacom and its
Consolidated Subsidiaries for any period, operating profit (loss) (excluding
that related to Discontinued Operations), plus other income (loss), plus
interest income, plus depreciation and amortization (excluding amortization
related to programming rights, prepublication costs and videocassettes),
excluding (a) gains (losses) on sales of assets (except (I) gains (losses) on
sales of inventory sold in the ordinary course of business and (II) gains
(losses) on sales of other assets if such gains (losses) are less than
$10,000,000 individually and less than $50,000,000 in the aggregate during such
period), (b) other non-cash items (including (i) provisions for losses and
additions to valuation allowances, (ii) provisions for restructuring, litigation
and environmental reserves and losses on the Disposition of businesses and (iii)
pension settlement charges), and (c) nonrecurring expenses incurred during such
period in connection with the merger of CBS and Viacom pursuant to the Agreement
and Plan of Merger entered into by CBS, Viacom and Viacom/CBS LLC dated as of
September 6, 1999, as amended, amended and restated, supplemented and otherwise
modified from time to time, minus cash payments made during such
7
period in respect of non-cash charges taken during any previous period
(excluding cash payments in respect of non-cash charges taken prior to December
31, 1999).
"Consolidated Interest Expense" shall mean for any period the gross
cash interest expense of Viacom and its Consolidated Subsidiaries on
Indebtedness for such period plus cash dividends paid on preferred stock to
persons other than Viacom and its Wholly Owned Subsidiaries for such period, but
excluding the gross cash interest expense of the Discontinued Operations for
such period.
"Consolidated Subsidiary" shall mean, as to any Person, each
Subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which shall be consolidated with the
financial statements of such Person in accordance with GAAP.
"Consolidated Tangible Assets" shall mean at any date the assets of
Viacom and its Subsidiaries determined on such date on a consolidated basis,
less goodwill and other intangible assets.
"Credit Event" shall mean the making of any Loan or the issuance of
any Letter of Credit hereunder (including the designation of a Designated Letter
of Credit as a "Letter of Credit" hereunder). It is understood that conversions
and continuations pursuant to Section 2.8 and subsection 2.6 of Annex II do not
constitute "Credit Events".
"Debt Rating" shall mean the rating applicable to Viacom's senior,
unsecured, non-credit-enhanced long-term indebtedness for borrowed money, as
assigned by either Rating Agency.
"Default" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
"Designated Letters of Credit" shall mean each letter of credit
issued by an Issuing Lender that (a) is not a Letter of Credit hereunder at the
time of its issuance and (b) is designated on or after the Closing Date by
Viacom or any Subsidiary Borrower (excepting any Canadian Borrower), with the
consent of such Issuing Lender, as a "Letter of Credit" hereunder by written
notice to the Administrative Agent in the form of Exhibit B-6.
"Discontinued Operations" shall mean the operations classifed as
"discontinued operations" pursuant to Accounting Principles Board Opinion No. 30
as presented in the quarterly report of CBS on Form 10-Q for the quarter ended
September 30, 1997 and filed with the SEC on December 14, 1997.
"Disposition" shall mean, with respect to any Property, any sale,
lease, assignment, conveyance, transfer or other disposition thereof; and the
terms "Dispose" and "Disposed of" shall have correlative meanings.
"Dollars" or "$" shall mean lawful money of the United States of
America.
"Environmental Laws" shall mean any and all Federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions,
8
grants, franchises, licenses, agreements or other governmental restrictions
relating to the environment or to emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes into the environment, including, without
limitation, ambient air, surface water, ground water or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, chemicals or
industrial, toxic or hazardous substances or wastes.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" shall mean, with respect to Viacom, any trade or
business (whether or not incorporated) that is a member of a group of which
Viacom is a member and which is treated as a single employer under Section 414
of the Code.
"Eurocurrency Competitive Loan" shall mean any Competitive Loan
which is a Eurocurrency Loan.
"Eurocurrency Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Eurocurrency Rate.
"Eurocurrency Rate" shall mean, with respect to an Interest Period
(a) pertaining to any Eurocurrency Loan (excepting Sterling), the rate of
interest determined on the basis of the rate for deposits in Dollars or the
relevant Foreign Currency, as the case may be, for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 (or, in the case of any Foreign Currency, the applicable page) of the
Telerate Screen as of 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period and (b) pertaining to any Eurocurrency Loan
denominated in Sterling, the rate of interest determined by the Administrative
Agent to be the average of the rates quoted by the Reference Banks at
approximately 11:00 a.m. London time (or as soon thereafter as practicable) on
the day two Business Days prior to the first day of the Interest Period for such
Loans for the offering by the Reference Banks to leading banks in the Paris
interbank market of deposits in Sterling having a term comparable to such
Interest Period and in an amount comparable to the principal amount of the
respective Eurocurrency Loans of the Reference Banks to which such Interest
Period relates. In the event that such rate does not appear on such page of the
Telerate Screen (or otherwise on the Telerate Service), the "Eurocurrency Rate"
shall instead be the interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the average of the rates at which deposits in
Dollars or the relevant Foreign Currency, as the case may be, approximately
equal in principal amount to (a) in the case of a Eurocurrency Tranche, the
portion of such Eurocurrency Tranche of the Lender serving as Administrative
Agent and (b) in the case of a Eurocurrency Competitive Loan, a principal amount
that would have been the portion of such Loan of the Lender serving as the
Administrative Agent had such Loan been a Eurocurrency Revolving Loan, and for a
maturity comparable to such Interest Period, are offered by the principal London
offices of the Reference Banks (or, if any Reference Bank does not at the time
maintain a London office, the principal London office of any affiliate of such
Reference Bank) for immediately available funds in the London interbank market
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
9
"Eurocurrency Revolving Loan" shall mean any Revolving Credit Loan,
which is a Eurocurrency Loan. Subject to the limitations contained herein, a
Eurocurrency Revolving Loan may be a Multi-Currency Revolving Loan.
"Eurocurrency Tranche" shall mean the collective reference to
Eurocurrency Loans under a particular Facility denominated in the same currency
made by the Lenders, the then current Interest Periods with respect to all of
which begin on the same date and end on the same later date (whether or not such
Eurocurrency Loans shall originally have been made on the same day).
"Eurocurrency US$-Canadian Loans" shall mean any US$-Canadian Loan
bearing interest at the Eurocurrency Rate.
"Euros" shall mean the single currency of participating member
states of the European Monetary Union.
"Event of Default" shall have the meaning assigned to such term in
Article VI; provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Excess Utilization Day" shall mean each day on which the Commitment
Utilization Percentage exceeds 50%.
"Exchange Act Report" shall have the meaning assigned to such term
in Section 3.3.
"Existing Credit Agreements" shall mean the (a) $6,400,000,000
Amended and Restated Credit Agreement, dated as of March 26, 1997 (as amended,
restated, supplemented or otherwise modified), among Viacom, as the borrower,
the banks named therein, 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, and ▇▇ ▇▇▇▇▇▇ Securities Inc. and Bank of
America NT&SA, as the syndication agents; (b) $1,500,000,000 Amended and
Restated Credit Agreement, dated as of December 10, 1999 (as amended, restated,
supplemented or otherwise modified), among Viacom (successor by merger with CBS
Corporation), as the borrower, the lenders named therein, Bank of America, N.A.
and The Toronto-Dominion Bank, as syndication agents, The Chase Manhattan Bank,
as documentation agent and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
administrative agent; (c) $1,500,000,000 Amended and Restated Credit Agreement,
dated as of December 10, 1999 (as amended, restated, supplemented or otherwise
modified), among Infinity, as the borrower, each subsidiary borrower, Viacom
(successor by merger with CBS Corporation), as a guarantor, the lenders named
therein, Bank of America, N.A. and The Toronto-Dominion Bank, as syndication
agents, The Chase Manhattan Bank, as documentation agent and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as administrative agent; and (d) $500,000,000 364-Day
Credit Agreement, dated as of May 3, 2000 (as amended, restated, supplemented or
otherwise modified), among Infinity, as the borrower, each subsidiary borrower,
the lenders named therein, Bank of New York, as
10
documentation agent, The Chase Manhattan Bank, as administrative agent, and Bank
of America, N.A. and Fleet National Bank, as co-syndication agents.
"Existing Infinity Credit Agreement" shall mean the Five-Year Credit
Agreement, dated as of May 3, 2000 (as amended, restated, supplemented or
otherwise modified from time to time), among Infinity, as borrower, the
subsidiary borrowers party thereto, the lenders named therein, Bank of New York,
as documentation agent, Chase, as administrative agent, and Bank of America,
N.A. and Fleet National Bank, as co-syndication agents.
"Facility" shall mean each of (a) the Revolving Credit Commitments
and the extensions of credit made thereunder (the "Revolving Facility") and (b)
the Canadian Commitments and the extensions of credit made thereunder (the
"Canadian Facility").
"Facility Fees" shall mean all fees payable pursuant to Section
2.9(a).
"Federal Funds Effective Rate" shall have the meaning assigned to
such term in the definition of "Alternate Base Rate".
"Fees" shall mean the Facility Fees, the Administrative Agent's
Fees, the Issuing Lender Fees, the LC Fees and the Utilization Fees.
"Financial Covenant" shall mean the financial covenant contained in
Section 5.7.
"Financial Letter of Credit" shall mean any Letter of Credit that,
as determined by the Administrative Agent acting in good faith, (a) supports a
financial obligation and (b) qualifies for the 100% credit conversion factor
under the applicable Bank for International Settlements guidelines.
"Financial Officer" of any corporation shall mean its Chief
Financial Officer, its Vice President and Treasurer or its Vice President and
Chief Accounting Officer or, in each case, any comparable officer or any Person
designated by any such officer.
"Foreign Currency" shall mean any currency (including, without
limitation, any Multi-Currency and Canadian Dollars, but excluding Dollars),
which is readily transferable and readily convertible by the relevant Lender or
Issuing Lender, as the case may be, into Dollars in the London interbank market.
"Foreign Exchange Rate" shall mean, with respect to any Foreign
Currency on a particular date, the rate at which such Foreign Currency may be
exchanged into Dollars, determined by reference to the selling rate in respect
of such Foreign Currency published in the "Wall Street Journal" on the relevant
date of determination. In the event that such rate is not, or ceases to be, so
published by the "Wall Street Journal", the "Foreign Exchange Rate" with respect
to such Foreign Currency shall be determined by reference to such other publicly
available source for determining exchange rates as may be agreed upon by the
Administrative Agent and Viacom or, in the absence of such agreement, such
"Foreign Exchange Rate" shall instead be (i) with respect to any Foreign
Currency, excepting Canadian Dollars, the Administrative Agent's spot rate of
exchange in the interbank market where its foreign currency exchange operations
in respect of such Foreign Currency are then being conducted, at or about
11
12:00 noon, local time, at such date for the purchase of Dollars with such
Foreign Currency, for delivery two banking days later and (ii) with respect to
Canadian Dollars, the spot rate at which Canadian Dollars may be exchanged into
Dollars, as quoted by the Canadian Administrative Agent at approximately 12:00
noon, Toronto time, at such date for the purchase of Dollars with such Canadian
Dollars, for delivery two banking days later.
"GAAP" shall mean generally accepted accounting principles.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Granting Bank" shall have to meaning specified in Section 9.4(i).
"Guarantee" of or by any Person shall mean any obligation,
contingent or otherwise, of such Person guaranteeing or entered into with the
purpose of guaranteeing any Indebtedness of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase Property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (c) to maintain working capital, equity capital
or other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness; provided, however, that
the term "Guarantee" shall not include endorsements for collection or deposit,
in either case in the ordinary course of business.
"Indebtedness" of any Person shall mean at any date, without
duplication, (i) all obligations of such Person for borrowed money (including,
without limitation, in the case of any Borrower (including any Canadian
Borrower), the obligations of such Borrower or such Canadian Borrower, as
applicable, 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 Capital Lease Obligations, (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 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(a) hereto (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
12
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) specifically with respect to the production,
distribution and acquisition of motion pictures or other programming rights,
talent or publishing rights.
"Infinity" shall mean Infinity Broadcasting Corporation, a Delaware
corporation.
"Interest Payment Date" shall mean (a) with respect to any
Eurocurrency Loan or Absolute Rate Loan, the last day of the Interest Period
applicable thereto and, in the case of a Eurocurrency Loan with an Interest
Period of more than three months' duration or an Absolute Rate Loan with an
Interest Period of more than 90 days' duration, each day that would have been an
Interest Payment Date for such Loan had successive Interest Periods of three
months' duration or 90 days' duration, as the case may be, been applicable to
such Loan and, in addition, the date of any conversion of any Eurocurrency
Revolving Loan to an ABR Loan, the date of repayment or prepayment of any
Eurocurrency Loan and the applicable Maturity Date; (b) with respect to any ABR
Loan (other than an ABR Swingline Loan which is not an Unrefunded Swingline
Loan), the last day of each March, June, September and December and the
applicable Maturity Date; (c) with respect to any ABR Swingline Loan (other than
an Unrefunded Swingline Loan), the earlier of (i) the day that is five Business
Days after such Loan is made and (ii) the Revolving Credit Maturity Date and (d)
with respect to any Quoted Swingline Loan, the date established as such by the
relevant Swingline Borrower and the relevant Swingline Lender prior to the
making thereof (but in any event no later than the Revolving Credit Maturity
Date).
"Interest Period" shall mean (a) as to any Eurocurrency Loan, the
period commencing on the borrowing date or conversion date of such Loan, or on
the last day of the immediately preceding Interest Period applicable to such
Loan, as the case may be, and ending on the numerically corresponding day (or,
if there is no numerically corresponding day, on the last day) in the calendar
month that is 7 days (subject to the prior consent of all Lenders under the
relevant Facility) or 1, 2, 3 or 6 months or (subject to the prior consent of
all Lenders under the relevant Facility) 9 or 12 months thereafter, as the
relevant Borrower may elect, and (b) as to any Absolute Rate Loan, the period
commencing on the date of such Loan and ending on the date specified in the
Competitive Bids in which the offer to make such Absolute Rate Loan was
extended; provided, however, that (i) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of Eurocurrency Loans only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day and (ii)
notwithstanding anything to the contrary herein, no Borrower may select an
Interest Period which would end after the Maturity Date applicable to the
relevant Loan. Interest shall accrue from and including that first day of an
Interest Period to but excluding the last day of such Interest Period.
"Issuing Lender" shall mean any Lender designated as an Issuing
Lender in an Issuing Lender Agreement executed by such Lender, Viacom and the
Administrative Agent; provided, that the Issuing Lender may, in its discretion,
arrange for one or more Letters of Credit to be issued by any of its Lender
Affiliates (in which case the term "Issuing Lender" shall include such Lender
Affiliate with respect to Letters of Credit issued by such Lender Affiliate);
13
provided, further, with respect to any Designated Letter of Credit, the Lender
or Lender Affiliate of such Lender which issued such Designated Letter of
Credit.
"Issuing Lender Agreement" shall mean an agreement, substantially in
the form of Exhibit F, executed by a Lender, Viacom, and the Administrative
Agent pursuant to which such Lender agrees to become an Issuing Lender
hereunder.
"Issuing Lender Fees" shall mean, as to any Issuing Lender, the fees
set forth in the applicable Issuing Lender Agreement.
"Joint Lead Arrangers" shall mean ▇▇ ▇▇▇▇▇▇, a division of Chase
Securities Inc., a New York corporation, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., a New
York corporation.
"LC Disbursement" shall mean any payment or disbursement made by an
Issuing Lender under or pursuant to a Letter of Credit.
"LC Exposure" shall mean, as to each Lender, such Lender's Revolving
Credit Percentage of the Aggregate LC Exposure.
"LC Fee" shall have the meaning assigned such term in Section
2.9(b).
"Lender Affiliate" shall mean, (a) with respect to any Lender, (i)
an affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a Lender or an
affiliate of such Lender and (b) with respect to any Lender that is a fund which
invests in bank loans and similar extensions of credit, any other fund that
invests in bank loans and similar extensions of credit and is managed by the
same investment advisor as such Lender or by an affiliate of such investment
advisor.
"Lenders" shall have the meaning assigned to such term in the
preamble to this Agreement. It is understood and agreed that each reference in
this Agreement to any Lender shall, to the extent applicable, be deemed to be a
reference to each US-Canadian Lender (for all purposes other than Article II and
Annex II).
"Letters of Credit" shall mean letters of credit or bank guarantees
issued by an Issuing Lender for the account of Viacom or any Subsidiary Borrower
(excepting any Canadian Borrower) pursuant to Section 2.7(including any
Designated Letters of Credit).
"Lien" shall mean 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" shall mean any loan made by a Lender hereunder.
"Loan Documents" shall mean this Agreement and the Administrative
Agent Fee Letter.
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"Margin" shall mean, as to any Eurocurrency Competitive Loan, the
margin (expressed as a percentage rate per annum in the form of a decimal
rounded to no more than four places) to be added to or subtracted from the
Eurocurrency Rate in order to determine the interest rate applicable to such
Loan, as specified in the Competitive Bid relating to such Loan.
"Margin Stock" shall have the meaning assigned to such term under
Regulation U.
"Material Acquisition" shall mean any acquisition of Property or
series of related acquisitions of Property (including by way of merger) which
(a) constitutes assets comprising all or substantially all of an operating unit
of a business or constitutes all or substantially all of the common stock of a
Person and (b) involves the payment of consideration by Viacom and its
Subsidiaries (valued at the initial principal amount thereof in the case of
non-cash consideration consisting of notes or other debt securities and valued
at fair market value in the case of other non-cash consideration) in excess of
$100,000,000.
"Material Adverse Effect" shall mean (a) a material adverse effect
on the Property, business, results of operations or financial condition of
Viacom and its Subsidiaries taken as a whole or (b) material impairment of the
ability of Viacom to perform any of its obligations under this Agreement.
"Material Disposition" shall mean any Disposition of Property or
series of related Dispositions of Property which yields gross proceeds to Viacom
or any of its Subsidiaries (valued at the initial principal amount thereof in
the case of non-cash proceeds consisting of notes or other debt securities and
valued at fair market value in the case of other non-cash proceeds) in excess of
$100,000,000.
"Material Subsidiary" shall mean any "significant subsidiary" of
Viacom as defined in Regulation S-X of the SEC; provided, that each Subsidiary
Borrower shall in any event constitute a Material Subsidiary.
"Maturity Date" shall mean (a) in the case of the Revolving Credit
Loans and the ABR Swingline Loans, the Revolving Credit Maturity Date, (b) in
the case of the Quoted Swingline Loans, the date established as such by the
relevant Swingline Borrower and the relevant Swingline Lender prior to the
making thereof (but in any event no later than the Revolving Credit Maturity
Date) and (c) in the case of Competitive Loans, the last day of the Interest
Period applicable thereto, as specified in the related Competitive Bid Request.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multi-Currency" shall mean Euros, Sterling and Yen.
"Multi-Currency Revolving Loans" shall mean each Eurocurrency
Revolving Loan denominated in any Multi-Currency.
"Multi-Currency Sublimit" shall mean with respect to (i) Euros,
$500,000,000, (ii) Sterling, $500,000,000, (iii) Yen, $300,000,000 and (iv)
Canadian Dollars, $300,000,000, as
15
the sublimit may be increased or decreased from time to time in accordance with
Section 2.13 and subsection 3.2 of Annex II.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 3(37) of ERISA to which contributions have been made by Viacom or any
ERISA Affiliate of Viacom and which is covered by Title IV of ERISA.
"New Lender" shall have the meaning assigned to such term in Section
2.13(d).
"New Lender Supplement" shall mean the agreement made pursuant to
Section 2.13(d) substantially in the form of Exhibit G.
"Non-Financial Letter of Credit" shall mean any Letter of Credit
that is not a Financial Letter of Credit.
"Non-U.S. Person" shall have the meaning assigned to such term in
Section 2.20(f).
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Outstanding Canadian Extensions of Credit" shall mean, as to any
US-Canadian Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all US$-Canadian Loans made by such US-Canadian Lender then
outstanding and (b) the aggregate principal amount of all C$ Loans made by such
US-Canadian Lender then outstanding.
"Outstanding Revolving Extensions of Credit" shall mean, as to any
Lender at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans made by such Lender then outstanding, (b)
such Lender's LC Exposure at such time and (c) such Lender's ABR Swingline
Exposure at such time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA, or any successor thereto.
"Person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership, limited liability company or
other entity, or any government or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan as defined in
Section 3(2) of ERISA (other than a Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section 412 of the Code and which is
maintained for employees of Viacom or any ERISA Affiliate.
"Prime Rate" shall have the meaning assigned to such term in the
definition of "Alternate Base Rate".
16
"Pro Forma Period" shall have the meaning assigned to such term in
Section 1.2(c).
"Property" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.
"Quoted Swingline Loans" shall have the meaning assigned to such
term in Section 2.6(a).
"Quoted Swingline Rate" shall have the meaning assigned to such term
in Section 2.6(a).
"Rating Agencies" shall mean S&P and Moody's.
"Reference Banks" shall mean Chase, Citibank N.A. and Bank of
America, N.A.
"Register" shall have the meaning assigned to such term in Section
9.4(d).
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Required US-Canadian Lenders" shall mean, at any time, US-Canadian
Lenders whose respective Total Canadian Facility Percentages aggregate more than
50%.
"Required Facility Lenders" shall mean the Required US-Canadian
Lenders or the Required Revolving Lenders, as applicable.
"Required Revolving Lenders" shall mean, at any time, Lenders whose
respective Total Revolving Facility Percentages aggregate more than 50%.
"Required Lenders" shall mean, at any time, Lenders whose respective
Total Facility Percentages aggregate more than 50%.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement (or, in the case of matters
relating to ERISA, any officer responsible for the administration of the pension
funds of such corporation).
"Revolving Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Revolving Credit Loans pursuant to Section
2.1(a), to make or refund ABR Swingline Loans pursuant to Section 2.6 and to
issue or participate in Letters of Credit pursuant to Section 2.7, in each case,
as set forth on Schedule 1.1, as such Lender's
17
Commitment may be permanently terminated or reduced from time to time pursuant
to Section 2.13 or changed pursuant to Section 9.4.
"Revolving Credit Loans" shall mean the revolving loans made by the
Lenders to any Borrower pursuant to Section 2.4. Each Revolving Credit Loan
shall be a Eurocurrency Loan or an ABR Loan.
"Revolving Credit Maturity Date" shall mean March 7, 2006.
"Revolving Credit Percentage" of any Lender at any time shall mean
the percentage of the aggregate Revolving Commitments (or, following any
termination of all the Revolving Commitments, the Revolving Commitments most
recently in effect) represented by such Lender's Revolving Commitment (or,
following any such termination, the Revolving Commitment of such Lender most
recently in effect).
"Revolving Facility Exposure" shall mean, with respect to any
Lender, the sum of (a) the Outstanding Revolving Extensions of Credit of such
Lender, (b) the aggregate outstanding principal amount of any Competitive Loans
made by such Lender and (c) in the case of a Swingline Lender, the aggregate
outstanding principal amount of any Quoted Swingline Loans made by such
Swingline Lender.
"S&P" shall mean Standard & Poor's Ratings Services.
"SEC" shall mean the Securities and Exchange Commission.
"Sole Bookrunner" shall mean ▇▇ ▇▇▇▇▇▇, a division of Chase
Securities Inc., a New York corporation.
"Specified Currency Availability" shall mean the Multi-Currency
Sublimit with respect to the relevant Multi-Currency less the Dollar equivalent
of the aggregate principal amount of all Multi-Currency Revolving Loans
denominated in such Multi-Currency outstanding on the date of borrowing.
"SPC" shall have the meaning specified in Section 9.4(i).
"Spot Rate" shall mean, at any date, the Administrative Agent's or
Lender's, as the case may be, (or, for purposes of determinations in respect of
the Aggregate LC Exposure related to Letters of Credit issued in a Foreign
Currency, the Issuing Lender's or Issuing Lenders', as the case may be) spot
buying rate for the relevant Foreign Currency against Dollars as of
approximately 11:00 a.m. (London time) on such date for settlement on the second
Business Day.
"Sterling" shall mean British Pounds Sterling, the lawful currency
of the United Kingdom on the date hereof.
"Subsidiary" shall mean, for any Person (the "Parent"), any
corporation, partnership or other entity of which shares of Voting Capital Stock
sufficient to elect a majority of the board of directors or other Persons
performing similar functions of such corporation,
18
partnership or other entity (irrespective of whether or not at the time
securities or other ownership interests of any other class or classes of such
corporation, partnership or other entity shall have or might have voting power
by reason of the happening of any contingency) are at the time directly or
indirectly owned or controlled by the Parent or one or more of its Subsidiaries
or by the Parent and one or more of its Subsidiaries. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of Viacom.
"Subsidiary Borrower" shall mean any Subsidiary of Viacom (a) which
is designated as a Subsidiary Borrower by Viacom pursuant to a Subsidiary
Borrower Designation, (b) which has delivered to the Administrative Agent a
Subsidiary Borrower Request and (c) whose designation as a Subsidiary Borrower
has not been terminated pursuant to Section 4.2. The term "Subsidiary Borrower"
shall include (except for purposes of Article II and Annex II) any Canadian
Borrower.
"Subsidiary Borrower Designation" shall mean a designation,
substantially in the form of Exhibit B-7, which may be delivered by Viacom and
approved by Viacom and shall be accompanied by a Subsidiary Borrower Request.
"Subsidiary Borrower Obligations" shall mean, with respect to each
Subsidiary Borrower (including each Canadian Borrower), the unpaid principal of
and interest on the Loans made to such Subsidiary Borrower (including, without
limitation, interest accruing after the maturity of the Loans made to such
Subsidiary Borrower and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to such Subsidiary Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) and all
other obligations and liabilities of such Subsidiary Borrower to the
Administrative Agent or to any Lender (including any US-Canadian Lender),
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement.
"Subsidiary Borrower Request" shall mean a request, substantially in
the form of Exhibit B-8, which is received by the Administrative Agent in
connection with a Subsidiary Borrower Designation.
"Swingline Borrower" shall mean Viacom and any Subsidiary Borrower
designated as a "Swingline Borrower" by Viacom in a written notice to the
Administrative Agent; provided, that, unless otherwise agreed by the
Administrative Agent, no more than one Subsidiary Borrower may be a Swingline
Borrower at any one time. Only a Subsidiary Borrower which is a U.S. Person may
be a Swingline Borrower.
"Swingline Commitment" shall mean, (i) with respect to any Swingline
Lender, the Commitment of such Lender to make ABR Swingline Loans pursuant to
Section 2.6, as designated in accordance with Section 2.6(g) and as set forth on
Schedule 1.1, and, (ii) in the aggregate, $300,000,000.
19
"Swingline Lender" shall mean The Chase Manhattan Bank and any other
Lender designated from time to time by Viacom, and approved by such Lender, as a
"Swingline Lender" pursuant to Section 2.6(g).
"Swingline Loans" shall mean the collective reference to the ABR
Swingline Loans and the Quoted Swingline Loans.
"Swingline Percentage" of any Swingline Lender at any time shall
mean the percentage of the aggregate Swingline Commitments represented by such
Swingline Lender's Swingline Commitment.
"Syndication Agent" shall have the meaning assigned to such term in
the preamble hereto.
"Test Period" shall have the meaning assigned to such term in
Section 1.2(c).
"364-Day Credit Agreement" shall mean the 364-day credit agreement,
dated the date hereof, among Viacom, Viacom International, each subsidiary
borrower, the lenders party thereto, Chase, as administrative agent, ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc., as syndication agent, and Fleet National Bank and Bank of
America, N.A., as co-documentation agents.
"Total Canadian Commitment" shall mean at any time the aggregate
amount of the Canadian Commitments in effect at such time.
"Total Canadian Facility Exposure" shall mean at any time the
aggregate amount of the Outstanding Canadian Extensions of Credit at such time.
"Total Canadian Facility Percentage" shall mean, as to any
US-Canadian Lender at any time, the quotient (expressed as a percentage) of (a)
such US-Canadian Lender's Canadian Commitment (or (x) for the purposes of
acceleration of the Loans pursuant to clause (II) of Article VI or (y) if the
Canadian Commitments have terminated, the sum of such Lender's Outstanding
Canadian Extensions of Credit) and (b) the aggregate of all US-Canadian Lenders'
Canadian Commitments (or (x) for the purposes of acceleration of the Loans
pursuant to clause (II) of Article VI or (y) if the Canadian Commitments have
terminated, the Total Canadian Facility Exposure).
"Total Facility Percentage" shall mean, (i) as to any Lender
(including any US-Canadian Lender) at any time, the quotient (expressed as a
percentage) of (a) the sum of such Lender's Commitment and Canadian Commitment
(or (x) for the purposes of acceleration of the Loans pursuant to clause (II) of
Article VI or (y) if the Commitments have terminated, the sum of such Lender's
Revolving Facility Exposure and Outstanding Canadian Extensions of Credit) and
(b) the aggregate of all Lenders' Commitments and Canadian Commitments (or (x)
for the purposes of acceleration of the Loans pursuant to clause (II) of Article
VI or (y) if the Commitments have terminated, the sum of the Total Revolving
Facility Exposure and Total Canadian Facility Exposure).
"Total Revolving Commitment" shall mean at any time the aggregate
amount of the Revolving Commitments in effect at such time.
20
"Total Revolving Facility Exposure" shall mean at any time the
aggregate amount of the Revolving Facility Exposures at such time.
"Total Revolving Facility Percentage" shall mean, as to any Lender
at any time, the quotient (expressed as a percentage) of (a) such Lender's
Revolving Commitment (or (x) for the purposes of acceleration of the Loans
pursuant to clause (II) of Article VI or (y) if the Revolving Commitments have
terminated, such Lender's Revolving Facility Exposure) and (b) the aggregate of
all Lenders' Revolving Commitments (or (x) for the purposes of acceleration of
the Loans pursuant to clause (II) of Article VI or (y) if the Revolving
Commitments have terminated, the Total Revolving Facility Exposure).
"Total Specified Currency Availability" shall mean with respect to
Multi-Currency Revolving Loans, $1,000,000,000 (as increased or decreased from
time to time pursuant to Section 2.13) less the Dollar equivalent of the
aggregate principal amount of all Multi-Currency Revolving Loans then
outstanding.
"Transferee" shall mean any assignee or participant described in
Section 9.4(b) or (f).
"Type" when used in respect of any Loan, shall refer to the Rate by
reference to which interest on such Loan is determined. For purposes hereof,
"Rate" shall mean the Eurocurrency Rate, the Alternate Base Rate, the Quoted
Swingline Rate and the rate paid on Absolute Rate Loans.
"Unrefunded Swingline Loans" shall have the meaning assigned to such
term in Section 2.6(d).
"US-Canadian Lenders" shall have the meaning assigned to such term
in Annex II hereto.
"US$-Canadian Loans" shall have the meaning set forth in Section
2.1. Each US$-Canadian Loan shall be a Eurocurrency Loan or an ABR Loan.
"U.S. Person" shall mean a citizen, national or resident of the
United States of America, or an entity organized in or under the laws of the
United States of America.
"Utilization Fee" shall have the meaning assigned to such term in
Section 2.9(e).
"Viacom" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Viacom International" shall have the meaning assigned to such term
in the preamble to this Agreement.
"Viacom Obligations" shall mean, with respect to Viacom, the unpaid
principal of and interest on the Loans made to Viacom (including, without
limitation, interest accruing after the maturity of the Loans made to Viacom and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
21
to Viacom, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) and all other obligations, including its Guarantee
obligations hereunder, and liabilities of Viacom to the Administrative Agent or
to any Lender, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement.
"Voting Capital Stock" shall mean securities or other ownership
interests of a corporation, partnership or other entity having by the terms
thereof ordinary voting power to vote in the election of the board of directors
or other Persons performing similar functions of such corporation, partnership
or other entity (without regard to the occurrence of any contingency).
"Wholly Owned Subsidiary" shall mean any Subsidiary of which all
shares of Voting Capital Stock (other than, in the case of a corporation,
directors' qualifying shares) are owned directly or indirectly by the Parent (as
defined in the definition of "Subsidiary").
"Yen" shall mean the lawful currency of Japan.
SECTION 1.2. Terms Generally. (a) The definitions in Section 1.1
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall, except where the context otherwise requires, be deemed to be
followed by the phrase "without limitation". All references herein to Articles,
Sections, Exhibits and Schedules shall be deemed references to Articles and
Sections of, and Exhibits and Schedules to, this Agreement unless the context
shall otherwise require.
(b) Except as otherwise expressly provided herein, all terms of an
accounting nature shall be construed in accordance with GAAP in effect from time
to time. 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 3.2 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 the Financial Covenant or any standard or
term contained in this Agreement, the Administrative Agent and Viacom shall
negotiate in good faith to amend such Financial Covenant, 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 Viacom'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 amendments shall not become effective for purposes of this
Agreement unless approved by the Required Lenders and (ii) if Viacom and the
Required Lenders cannot agree on such an amendment, then the calculations under
such Financial Covenant, standards or terms shall continue to be computed
without giving effect to such change in accounting principles; provided further,
however, that the parties hereto agree that Viacom and its Subsidiaries shall
adopt Statement of Position 00-2, "Accounting by Producers or Distributors of
Films" effective as from January 1, 2000.
22
(c) For the purposes of calculating Consolidated EBITDA and
Consolidated Interest Expense for any period (a "Test Period"), (i) if at any
time from the period (a "Pro Forma Period") commencing on the second day of such
Test Period and ending on the date which is ten days prior to the date of
delivery of the Compliance Certificate in respect of such Test Period (or, in
the case of any pro forma calculation made pursuant hereto in respect of a
particular transaction, ending on the date such transaction is consummated after
giving effect thereto), Viacom or any Subsidiary shall have made any Material
Disposition, the Consolidated EBITDA for such Test Period shall be reduced by an
amount equal to the Consolidated EBITDA (if positive) attributable to the
Property which is the subject of such Material Disposition for such Test Period
or increased by an amount equal to the Consolidated EBITDA (if negative)
attributable thereto for such Test Period, and Consolidated Interest Expense for
such Test Period shall be reduced by an amount equal to the Consolidated
Interest Expense for such Test Period attributable to any Indebtedness of Viacom
or any Subsidiary repaid, repurchased, defeased or otherwise discharged with
respect to Viacom and its Subsidiaries in connection with such Material
Disposition (or, if the Capital Stock of any Subsidiary is sold, the
Consolidated Interest Expense for such Test Period directly attributable to the
Indebtedness of such Subsidiary to the extent Viacom and its continuing
Subsidiaries are no longer liable for such Indebtedness after such Disposition);
(ii) if during such Pro Forma Period Viacom or any Subsidiary shall have made a
Material Acquisition, Consolidated EBITDA and Consolidated Interest Expense for
such Test Period shall be calculated after giving pro forma effect thereto
(including the incurrence or assumption of any Indebtedness in connection
therewith) as if such Material Acquisition (and the incurrence or assumption of
any such Indebtedness) occurred on the first day of such Test Period; and (iii)
if during such Pro Forma Period any Person that subsequently became a Subsidiary
or was merged with or into Viacom or any Subsidiary since the beginning of such
Pro Forma Period shall have entered into any disposition or acquisition
transaction that would have required an adjustment pursuant to clause (i) or
(ii) above if made by Viacom or a Subsidiary during such Pro Forma Period,
Consolidated EBITDA and Consolidated Interest Expense for such Test Period shall
be calculated after giving pro forma effect thereto as if such transaction
occurred on the first day of such Test Period. For the purposes of this
paragraph, whenever pro forma effect is to be given to a Material Disposition or
Material Acquisition, the amount of income or earnings relating thereto and the
amount of Consolidated Interest Expense associated with any Indebtedness
discharged or incurred in connection therewith, the pro forma calculations shall
be determined in good faith by a Financial Officer of Viacom. If any
Indebtedness bears a floating rate of interest and the incurrence or assumption
thereof is being given pro forma effect, the interest expense on such
Indebtedness shall be calculated as if the rate in effect on the last day of the
relevant Pro Forma Period had been the applicable rate for the entire relevant
Test Period (taking into account any interest rate protection agreement
applicable to such Indebtedness if such interest rate protection agreement has a
remaining term in excess of 12 months). Comparable adjustments shall be made in
connection with any determination of Consolidated EBITDA.
(d) For purposes of the Financial Covenant, (i) the Discontinued
Operations shall be disregarded and (ii) the businesses classified as
Discontinued Operations shall be limited to those businesses treated as such in
the financial statements of Viacom referred to in the definition of
"Discontinued Operations" and the accounting treatment of Discontinued
Operations shall be consistent with the accounting treatment thereof in such
financial statements.
23
ARTICLE II
THE CREDITS
SECTION 2.1. Commitments.
(a) Subject to the terms and conditions hereof and relying upon the
representations and warranties herein set forth, each Lender agrees, severally
and not jointly, to make Revolving Credit Loans to Viacom or any Subsidiary
Borrower at any time and from time to time on and after the Closing Date and
until the earlier of (x) the Business Day immediately preceding the Revolving
Credit Maturity Date and (y) the termination of the Revolving Commitment of such
Lender, in an aggregate principal amount at any time outstanding not to exceed
such Lender's Revolving Commitment. Each Borrower may borrow, prepay and
reborrow Revolving Credit Loans on and after the Closing Date and prior to the
Revolving Credit Maturity Date, subject to the terms, conditions and limitations
set forth herein.
(b) Subject to the terms and conditions hereof and relying upon the
representations and warranties herein set forth, each US-Canadian Lender agrees,
severally and not jointly, (A) to make C$ Loans to any Canadian Borrower as
provided in Annex II or (B) at Viacom's request, to make revolving loans
denominated in Dollars to Viacom or any Subsidiary Borrower (excluding any
Canadian Borrower) (such revolving loans, "US$-Canadian Loans"), in each case,
through its applicable Canadian Lending Office with respect to such Loan, at any
time and from time to time on and after the Closing Date and until the earlier
of (x) the Business Day immediately preceding the Revolving Credit Maturity Date
and (y) the termination of the Canadian Commitment of such US-Canadian Lender,
in an aggregate principal amount at any time outstanding not to exceed such
US-Canadian Lender's Canadian Commitment. Each Borrower may borrow, prepay and
reborrow US$-Canadian Loans on and after the Closing Date and prior to the
Revolving Credit Maturity Date, subject to the terms, conditions and limitations
set forth herein and in Annex II and each Canadian Borrower may borrow, prepay
and reborrow C$ Loans as provided in Annex II.
SECTION 2.2. Revolving Credit Loans; Competitive Loans.
(a) Each Revolving Credit Loan shall be made to the relevant
Borrower by the Lenders ratably in accordance with their respective Revolving
Commitments, in accordance with the procedures set forth in Section 2.4. Each
US$-Canadian Loan shall be made to the relevant Borrower by the US-Canadian
Lenders ratably in accordance with their respective Canadian Commitments, in
accordance with the procedures set forth in Section 2.4. Each Competitive Loan
shall be made to the relevant Borrower by the Lender whose Competitive Bid
therefor is accepted, and in the amount so accepted, in accordance with the
procedures set forth in Section 2.3. The Revolving Credit Loans, US$-Canadian
Loans or Competitive Loans shall be made in minimum amounts equal to (i) in the
case of Competitive Loans, $5,000,000 or an integral multiple of $1,000,000 in
excess thereof, (ii) in the case of Eurocurrency US$-Canadian Loans and
Eurocurrency Revolving Loans, $50,000,000 or an integral multiple of $5,000,000
in excess thereof, (iii) in the case of Multi-Currency Revolving Loans, the
Dollar equivalent of $25,000,000 or an integral multiple of $5,000,000 in excess
thereof and (iv) in the case of ABR
24
US$-Canadian Loans and ABR Revolving Loans, $25,000,000 or an integral multiple
of $5,000,000 in excess thereof (or (A) (x) in the case of Revolving Credit
Loans, an aggregate principal amount equal to the remaining balance of the
available Total Revolving Commitment or, if less, (y) with respect to
Multi-Currency Revolving Loans, the lesser of (I) the Specified Currency
Availability with respect to such currency and (II) the Total Specified Currency
Availability or (B) in the case of US$-Canadian Loans, an aggregate principal
amount equal to the remaining balance of the available Total Canadian
Commitment).
(b) Each Lender or US-Canadian Lender, as applicable, shall make
each Loan (other than a Swingline Loan, as to which this Section 2.2 shall not
apply, and a C$ Loan, as to which Annex II shall govern) to be made by it on the
proposed date thereof by wire transfer of immediately available funds to the
Administrative Agent in New York, New York, not later than 12:00 noon, New York
City time (or, in connection with an ABR Loan to be made on the same day on
which a notice is submitted, 12:30 p.m., New York City time) and the
Administrative Agent shall by 3:00 p.m., New York City time, credit the amounts
so received to the general deposit account of the relevant Borrower with the
Administrative Agent. Each US-Canadian Lender shall make each US$-Canadian Loan
through a branch or Lender Affiliate of such US-Canadian Lender located in the
United States (or as otherwise may be agreed form time to time between Viacom
and such US-Canadian Lander).
SECTION 2.3. Competitive Bid Procedure.
(a) In order to request Competitive Bids, the relevant Borrower
shall hand deliver or telecopy to the Administrative Agent a duly completed
Competitive Bid Request in the form of Exhibit B-1, to be received by the
Administrative Agent (i) in the case of a Eurocurrency Competitive Loan in
Dollars, not later than 10:00 a.m., New York City time, four Business Days
before a proposed Competitive Loan, (ii) in the case of a Eurocurrency
Competitive Loan in a Foreign Currency, not later than 10:00 a.m., New York City
time, five Business Days before a proposed Competitive Loan , (iii) in the case
of an Absolute Rate Loan in Dollars, not later than 10:00 a.m., New York City
time, one Business Day before a proposed Competitive Loan and (iv) in the case
of an Absolute Rate Loan in a Foreign Currency, not later than 10:00 a.m., New
York City time, three Business Day before a proposed Competitive Loan. A
Competitive Bid Request (A) that does not conform substantially to the format of
Exhibit B-1 may be rejected in the Administrative Agent's discretion (exercised
in good faith), and, (B) for a Competitive Loan denominated in a Foreign
Currency will be rejected by the Administrative Agent if, after giving effect
thereto, the Dollar equivalent of the aggregate face amount of all Competitive
Loans denominated in Foreign Currencies then outstanding would exceed
$150,000,000, as determined by the Administrative Agent, and, in each case, the
Administrative Agent shall promptly notify the relevant Borrower of such
rejection by telephone, confirmed by telecopier. Such request shall in each case
refer to this Agreement and specify (w) whether the Competitive Loan then being
requested is to be a Eurocurrency Competitive Loan or an Absolute Rate Loan, (x)
the currency, (y) the date of such Loan (which shall be a Business Day) and the
aggregate principal amount thereof which shall be in a minimum principal amount
of the equivalent of $5,000,000 and, in the case of a Competitive Bid for a
Competitive Loan in Dollars, in an integral multiple of $1,000,000, and (z) the
Interest Period with respect thereto (which may not end after the Revolving
Credit Maturity Date). Promptly after its receipt of a Competitive Bid Request
that is not rejected as aforesaid (and in any event by 5:00 p.m., New York City
time, on the date of such
25
receipt if such receipt occurs by the time specified in the first sentence of
this paragraph), the Administrative Agent shall invite by telecopier (in the
form set forth in Exhibit B-2) the Lenders to bid, on the terms and conditions
of this Agreement, to make Competitive Loans pursuant to such Competitive Bid
Request.
(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the relevant Borrower responsive to a Competitive Bid
Request. Each Competitive Bid must be received by the Administrative Agent by
telecopier, in the form of Exhibit B-3, (i) in the case of a Eurocurrency
Competitive Loan in Dollars, not later than 9:30 a.m., New York City time, three
Business Days before a proposed Competitive Loan, (ii) in the case of a
Eurocurrency Competitive Loan in a Foreign Currency, not later than 9:30 a.m.,
New York City time, four Business Days before a proposed Competitive Loan, (iii)
in the case of an Absolute Rate Loan in Dollars, not later than 9:30 a.m., New
York City time, on the day of a proposed Competitive Loan, and (iv) in the case
of an Absolute Rate Loan in a Foreign Currency, not later than 9:30 a.m., New
York City time, two days before a proposed Competitive Loan. Multiple
Competitive Bids will be accepted by the Administrative Agent. Competitive Bids
that do not conform substantially to the format of Exhibit B-3 may be rejected
by the Administrative Agent after conferring with, and upon the instruction of,
the relevant Borrower, and the Administrative Agent shall notify the Lender
making such nonconforming Competitive Bid of such rejection as soon as
practicable. Each Competitive Bid shall refer to this Agreement and specify (x)
the principal amount in the relevant currency (which shall be in a minimum
principal amount of the equivalent of $5,000,000 and, in the case of a
Competitive Bid for a Competitive Loan in Dollars, in an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Loan requested by the relevant Borrower) of the Competitive Loan or Loans that
the applicable Lender is willing to make to the relevant Borrower, (y) the
Competitive Bid Rate or Rates at which such Lender is prepared to make the
Competitive Loan or Loans and (z) the Interest Period and the last day thereof.
A Competitive Bid submitted pursuant to this paragraph (b) shall be irrevocable
(subject to the satisfaction of the conditions to borrowing set forth in Article
IV).
(c) The Administrative Agent shall promptly (and in any event by
10:15 a.m., New York City time, on the date on which such Competitive Bids shall
have been made) notify the relevant Borrower by telecopier of all the
Competitive Bids made, the Competitive Bid Rate and the principal amount in the
relevant currency of each Competitive Loan in respect of which a Competitive Bid
was made and the identity of the Lender that made each Competitive Bid. The
Administrative Agent shall send a copy of all Competitive Bids to the relevant
Borrower for its records as soon as practicable after completion of the bidding
process set forth in this Section 2.3.
(d) The relevant Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. The relevant Borrower shall
notify the Administrative Agent by telephone, confirmed by telecopier in such
form as may be agreed upon by such Borrower and the Administrative Agent,
whether and to what extent it has decided to accept or reject any of or all the
Competitive Bids referred to in paragraph (c) above, (i) in the case of a
Eurocurrency Competitive Loan in Dollars, not later than 11:00 a.m., New York
City time, three Business Days before a proposed Competitive Loan, (ii) in the
case of a Eurocurrency Competitive Loan in a Foreign Currency,
26
not later than 11:00 a.m., New York City time, four Business Days before a
proposed Competitive Loan, (iii) in the case of an Absolute Rate Loan in
Dollars, not later than 11:00 a.m., New York City time, on the day of a proposed
Competitive Loan, and (iv) in the case of an Absolute Rate Loan in a Foreign
Currency, not later than 11:00 a.m., New York City time, on the day before a
proposed Competitive Loan; provided, however, that (A) the failure by such
Borrower to give such notice shall be deemed to be a rejection of all the
Competitive Bids referred to in paragraph (c) above, (B) such Borrower shall not
accept a Competitive Bid made at a particular Competitive Bid Rate if it has
decided to reject a Competitive Bid made at a lower Competitive Bid Rate, (C)
the aggregate amount of the Competitive Bids accepted by such Borrower shall not
exceed the principal amount specified in the Competitive Bid Request (but may be
less than that requested), (D) if such Borrower shall accept a Competitive Bid
or Competitive Bids made at a particular Competitive Bid Rate but the amount of
such Competitive Bid or Competitive Bids shall cause the total amount of
Competitive Bids to be accepted by it to exceed the amount specified in the
Competitive Bid Request, then such Borrower shall accept a portion of such
Competitive Bid or Competitive Bids in an amount equal to the amount specified
in the Competitive Bid Request less the amount of all other Competitive Bids
accepted with respect to such Competitive Bid Request, which acceptance, in the
case of multiple Competitive Bids at such Competitive Bid Rate, shall be made
pro rata in accordance with the amount of each such Competitive Bid at such
Competitive Bid Rate, and (E) except pursuant to clause (D) above no Competitive
Bid shall be accepted for a Competitive Loan unless such Competitive Loan is in
a minimum principal amount of the equivalent of $5,000,000 and, in the case of a
Competitive Bid for a Competitive Loan in Dollars, an integral amount multiple
of $1,000,000; provided, further, however, that if a Competitive Loan must be in
an amount less than the equivalent of $5,000,000 because of the provisions of
clause (D) above, such Competitive Loan may be for a minimum of, in the case of
a Competitive Bid for a Competitive Loan in Dollars, $1,000,000 or any integral
multiple thereof, and in calculating the pro rata allocation of acceptances of
portions of multiple Competitive Bids at a particular Competitive Bid Rate
pursuant to clause (D) above the amounts shall be rounded to integral multiples
of the equivalent of $1,000,000 (or, in the case of a Competitive Bid for a
Competitive Loan in a Foreign Currency, a multiple selected by the
Administrative Agent) in a manner which shall be in the discretion of such
Borrower. A notice given by any Borrower pursuant to this paragraph (d) shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender whether or not its Competitive Bid has been accepted (and if so, in what
amount and at what Competitive Bid Rate) by telecopy sent by the Administrative
Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Loan in respect of
which its Competitive Bid has been accepted.
(f) On the date the Competitive Loan is to be made, each Lender
participating therein shall (i) if such Competitive Loan is to be made in
Dollars, make available its share of such Competitive Loan in Dollars not later
than 2:00 p.m. New York City time, in immediately available funds, in New York
to the Administrative Agent as notified by the Administrative Agent by two
Business Days notice and (ii) if such Competitive Loan is to be made in a
Foreign Currency, make available its share of such Competitive Loan in such
Foreign Currency not later
27
than 11:00 a.m. London time, in immediately available funds, in London to the
Administrative Agent as notified by the Administrative Agent by two Business
Days notice.
(g) If the Lender which is the Administrative Agent shall elect to
submit a Competitive Bid in its capacity as a Lender, it shall submit such
Competitive Bid directly to the relevant Borrower at least one quarter of an
hour earlier than the latest time at which the other Lenders are required to
submit their Competitive Bids to the Administrative Agent pursuant to paragraph
(b) above.
(h) All notices required by this Section 2.3 shall be given in
accordance with Section 9.1.
(i) No Borrower shall have the right to prepay any Competitive Loan
without the consent of the Lender or Lenders making such Competitive Loan.
SECTION 2.4. Revolving Credit Loan Borrowing Procedure.
In order to request a Revolving Credit Loan or a US$-Canadian Loan,
the relevant Borrower shall hand deliver or telecopy to the Administrative Agent
a Borrowing Request in the form of Exhibit B-4 (a) in the case of a Eurocurrency
Revolving Loan denominated in Dollars or a Eurocurrency US$-Canadian Loan, not
later than 11:00 a.m., New York City time, three Business Days before a proposed
borrowing, (b) in the case of a Multi-Currency Revolving Loan, 8:00 a.m. New
York City time three Business Days before a proposed borrowing, and (c) in the
case of an ABR Revolving Loan or an ABR US$-Canadian Loan, not later than 11:00
a.m., New York City time, on the day of a proposed borrowing. Such notice shall
be irrevocable and shall in each case specify (i) whether the Revolving Credit
Loan or US$-Canadian Loan, as applicable, then being requested is to bear
interest at the Eurocurrency Rate or the Alternate Base Rate, (ii) the date of
such Revolving Credit Loan or US$-Canadian Loan (which shall be a Business Day)
and the amount thereof; (iii) in the case of a Eurocurrency Revolving Loan or a
Eurocurrency US$-Canadian Loan, the Interest Period with respect thereto, and
(iv) in the case of a Multi-Currency Revolving Loan, the currency in which such
Loan shall be denominated. The Administrative Agent shall promptly advise the
relevant Lenders and US-Canadian Lenders of any notice given pursuant to this
Section 2.4 and of each Lender's or US-Canadian Lender's, as applicable, portion
of the requested Loan.
SECTION 2.5. Repayment of Loans.
Each Borrower shall repay all outstanding Revolving Credit Loans,
US$-Canadian Loans and ABR Swingline Loans made to it, in each case on the
Revolving Credit Maturity Date (or such earlier date on which the Commitments
shall terminate in accordance herewith). Each Borrower shall repay Quoted
Swingline Loans and Competitive Loans made to it, in each case on the Maturity
Date applicable thereto. Each Loan above shall bear interest from and including
the date thereof on the outstanding principal balance thereof as set forth in
Section 2.10.
28
SECTION 2.6. Swingline Loans.
(a) Subject to the terms and conditions hereof and relying upon the
representations and warranties herein set forth, each Swingline Lender agrees,
severally and not jointly, at any time and from time to time on and after the
Closing Date and until the earlier of the Business Day immediately preceding the
Revolving Credit Maturity Date and the termination of the Swingline Commitment
of such Swingline Lender, (i) to make available to any Swingline Borrower
Swingline Loans ("Quoted Swingline Loans") on the basis of quoted interest rates
(each, a "Quoted Swingline Rate") furnished by such Swingline Lender from time
to time in its discretion to such Swingline Borrower (through the Administrative
Agent) and accepted by such Swingline Borrower in its discretion and (ii) to
make Swingline Loans ("ABR Swingline Loans") to any Swingline Borrower bearing
interest at a rate equal to the Alternate Base Rate in an aggregate principal
amount (in the case of this clause (ii)) not to exceed such Swingline Lender's
Swingline Commitment. The aggregate outstanding principal amount of the Quoted
Swingline Loans of any Swingline Lender, when added to the aggregate outstanding
principal amount of the ABR Swingline Loans of such Swingline Lender, may exceed
such Swingline Lender's Swingline Commitment; provided, that in no event shall
the aggregate outstanding principal amount of the Swingline Loans exceed the
aggregate Swingline Commitments then in effect. Each Quoted Swingline Loan shall
be made only by the Swingline Lender furnishing the relevant Quoted Swingline
Rate. Each ABR Swingline Loan shall be made by the Swingline Lenders ratably in
accordance with their respective Swingline Percentages. The Swingline Loans
shall be made in a minimum aggregate principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof (or an aggregate principal
amount equal to the remaining balance of the available Swingline Commitments).
Each Swingline Lender shall make the portion of each Swingline Loan to be made
by it available to any Swingline Borrower by means of a credit to the general
deposit account of such Swingline Borrower with the Administrative Agent or a
wire transfer, at the expense of such Swingline Borrower, to an account
designated in writing by such Swingline Borrower, in each case by 3:30 p.m., New
York City time, on the date such Swingline Loan is requested to be made pursuant
to paragraph (b) below, in immediately available funds. Each Swingline Borrower
may borrow, prepay and reborrow Swingline Loans on or after the Closing Date and
prior to the Revolving Credit Maturity Date (or such earlier date on which the
Commitments shall terminate in accordance herewith) on the terms and subject to
the conditions and limitations set forth herein.
(b) The relevant Swingline Borrower shall give the Administrative
Agent telephonic, written or telecopy notice substantially in the form of
Exhibit B-5 (in the case of telephonic notice, such notice shall be promptly
confirmed by telecopy) no later than 2:30 p.m., New York City time (or, in the
case of a proposed Quoted Swingline Loan, 12:00 noon, New York City time), on
the day of a proposed Swingline Loan. Such notice shall be delivered on a
Business Day, shall be irrevocable (subject, in the case of Quoted Swingline
Loans, to receipt by the relevant Swingline Borrower of Quoted Swingline Rates
acceptable to it) and shall refer to this Agreement and shall specify the
requested date (which shall be a Business Day) and amount of such Swingline
Loan. The Administrative Agent shall promptly advise the Swingline Lenders of
any notice received from any Swingline Borrower pursuant to this paragraph (b).
In the event that a Swingline Borrower accepts a Quoted Swingline Rate in
respect of a proposed Quoted Swingline Loan, it shall notify the Administrative
Agent (which shall in turn notify the relevant
29
Swingline Lender) of such acceptance no later than 2:30 p.m., New York City
time, on the relevant borrowing date.
(c) In the event that any ABR Swingline Loan shall be outstanding
for more than five Business Days, the Administrative Agent shall, on behalf of
the relevant Swingline Borrower (which hereby irrevocably directs and authorizes
the Administrative Agent to act on its behalf), request each Lender, including
the Swingline Lenders, to make an ABR Revolving Loan in an amount equal to such
Lender's Revolving Credit Percentage of the principal amount of such ABR
Swingline Loan. Unless an event described in Article VI, paragraph (f) or (g),
has occurred and is continuing, each Lender will make the proceeds of its
Revolving Credit Loan available to the Administrative Agent for the account of
the Swingline Lenders at the office of the Administrative Agent prior to 12:00
Noon, New York City time, in funds immediately available on the Business Day
next succeeding the date such notice is given. The proceeds of such Revolving
Credit Loans shall be immediately applied to repay the ABR Swingline Loans.
(d) A Swingline Lender that has made an ABR Swingline Loan to a
Borrower may at any time and for any reason, so long as Revolving Credit Loans
have not been made pursuant to Section 2.6(c) to repay such ABR Swingline Loan
as required by said Section, by written notice given to the Administrative Agent
not later than 12:00 noon New York City time on any Business Day require the
Lenders to acquire participations on such Business Day in all or a portion of
such unrefunded ABR Swingline Loans (the "Unrefunded Swingline Loans"), and each
Lender severally, unconditionally and irrevocably agrees that it shall purchase
an undivided participating interest in such ABR Swingline Loan in an amount
equal to the amount of the Revolving Credit Loan which otherwise would have been
made by such Lender pursuant to Section 2.6(c), which purchase shall be funded
by the time such Revolving Credit Loan would have been required to be made
pursuant to Section 2.6(c). In the event that the Lenders purchase undivided
participating interests pursuant to the first sentence of this paragraph (d),
each Lender shall immediately transfer to the Administrative Agent, for the
account of such Swingline Lenders, in immediately available funds the amount of
its participation. Any Lender holding a participation in an Unrefunded Swingline
Loan may exercise any and all rights of banker's lien, setoff or counterclaim
with respect to any and all moneys owing by the relevant Swingline Borrower to
such Lender by reason thereof as fully as if such Lender had made a Loan
directly to such Swingline Borrower in the amount of such participation.
(e) Whenever, at any time after any Swingline Lender has received
from any Lender such Lender's participating interest in an ABR Swingline Loan,
such Swingline Lender receives any payment on account thereof, such Swingline
Lender will promptly distribute to such Lender its participating interest in
such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participating interest was
outstanding and funded); provided, however, that in the event that such payment
received by such Swingline Lender is required to be returned, such Lender will
return to such Swingline Lender any portion thereof previously distributed by
such Swingline Lender to it.
(f) Notwithstanding anything to the contrary in this Agreement, each
Lender's obligation to make the Revolving Credit Loans referred to in Section
2.6(c) and to purchase and fund participating interests pursuant to Section
2.6(d) shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff,
30
counterclaim, recoupment, defense or other right which such Lender or any
Swingline Borrower may have against any Swingline Lender, any Swingline Borrower
or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default or an Event of Default or the failure to satisfy any of
the conditions specified in Article IV; (iii) any adverse change in the
condition (financial or otherwise) of Viacom or any of its Subsidiaries; (iv)
any breach of this Agreement by any Borrower or any Lender; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
(g) Upon written or telecopy notice to the Swingline Lenders and to
the Administrative Agent, Viacom may at any time terminate, from time to time in
part reduce, or from time to time (with the approval of the relevant Swingline
Lender) increase, the Swingline Commitment of any Swingline Lender. At any time
when there shall be fewer than ten Swingline Lenders, Viacom may appoint from
among the Lenders a new Swingline Lender, subject to the prior consent of such
new Swingline Lender and prior notice to the Administrative Agent, so long as at
no time shall there be more than ten Swingline Lenders. Notwithstanding anything
to the contrary in this Agreement, (i) if any ABR Swingline Loans shall be
outstanding at the time of any termination, reduction, increase or appointment
pursuant to the preceding two sentences, the Swingline Borrowers shall on the
date thereof prepay or borrow ABR Swingline Loans to the extent necessary to
ensure that at all times the outstanding ABR Swingline Loans held by the
Swingline Lenders shall be pro rata according to the respective Swingline
Commitments of the Swingline Lenders and (ii) in no event may the aggregate
Swingline Commitments exceed $300,000,000. On the date of any termination or
reduction of the Swingline Commitments pursuant to this paragraph (g), the
Swingline Borrowers shall pay or prepay so much of the Swingline Loans as shall
be necessary in order that, after giving effect to such termination or
reduction, (i) the aggregate outstanding principal amount of the ABR Swingline
Loans of any Swingline Lender will not exceed the Swingline Commitment of such
Swingline Lender and (ii) the aggregate outstanding principal amount of all
Swingline Loans will not exceed the aggregate Swingline Commitments.
(h) Each Swingline Borrower may prepay any Swingline Loan in whole
or in part at any time without premium or penalty; provided, that such Swingline
Borrower shall have given the Administrative Agent written or telecopy notice
(or telephone notice promptly confirmed in writing or by telecopy) of such
prepayment not later than 10:30 a.m., New York City time, on the Business Day
designated by such Swingline Borrower for such prepayment; and provided,
further, that each partial payment shall be in an amount that is an integral
multiple of $1,000,000. Each notice of prepayment under this paragraph (h) shall
specify the prepayment date and the principal amount of each Swingline Loan (or
portion thereof) to be prepaid, shall be irrevocable and shall commit such
Swingline Borrower to prepay such Swingline Loan (or portion thereof) by the
amount stated therein on the date stated therein. All prepayments under this
paragraph (h) shall be accompanied by accrued interest on the principal amount
being prepaid to the date of payment. Each payment of principal of or interest
on ABR Swingline Loans shall be allocated, as between the Swingline Lenders, pro
rata in accordance with their respective Swingline Percentages.
(i) All Swingline Loans shall be made in Dollars.
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SECTION 2.7. Letters of Credit.
(a) Subject to the terms and conditions hereof and relying upon the
representations and warranties herein set forth, each Issuing Lender agrees, at
any time and from time to time on or after the Closing Date until the earlier of
(i) the fifth Business Day preceding the Revolving Credit Maturity Date and (ii)
the termination of the Revolving Commitments in accordance with the terms
hereof, to issue and deliver or to extend the expiry of Letters of Credit for
the account of any Borrower in an aggregate outstanding undrawn amount which
does not exceed the maximum amount specified in the applicable Issuing Lender
Agreement; provided, that in no event shall the Aggregate LC Exposure exceed
$750,000,000 at any time. Each Letter of Credit (i) shall be in a form approved
in writing by the applicable Borrower and the applicable Issuing Lender and (ii)
shall permit drawings upon the presentation of such documents as shall be
specified by such Borrower in the applicable notice delivered pursuant to
paragraph (c) below. The Lenders agree that, subject to compliance with the
conditions precedent set forth in Section 4.3, any Designated Letter of Credit
may be designated as a Letter of Credit hereunder from time to time on or after
the Closing Date pursuant to the procedures specified in the definition of
"Designated Letters of Credit".
(b) Each Letter of Credit shall by its terms expire not later than
the fifth Business Day preceding the Revolving Credit Maturity Date. Any Letter
of Credit may provide for the renewal thereof for additional periods (which
shall in no event extend beyond the date referred to in the preceding sentence).
Each Letter of Credit shall by its terms provide for payment of drawings in
Dollars or in a Foreign Currency; provided, that a Letter of Credit denominated
in a Foreign Currency may not be issued if, after giving effect thereto, the
Dollar equivalent (calculated on the basis of the applicable Foreign Exchange
Rate) of the aggregate face amount of all Letters of Credit denominated in
Foreign Currencies then outstanding would exceed $150,000,000, as determined by
the Administrative Agent acting in good faith.
(c) The applicable Borrower shall give the applicable Issuing Lender
and the Administrative Agent written or telecopy notice not later than 10:00
a.m., New York City time, three Business Days (or such shorter period as shall
be acceptable to such Issuing Lender) prior to any proposed issuance of a Letter
of Credit. Each such notice shall refer to this Agreement and shall specify (i)
the date on which such Letter of Credit is to be issued (which shall be a
Business Day) and the face amount of such Letter of Credit, (ii) the name and
address of the beneficiary, (iii) whether such Letter of Credit is a Financial
Letter of Credit or a Non-Financial Letter of Credit (subject to confirmation of
such status by the Administrative Agent), (iv) whether such Letter of Credit
shall permit a single drawing or multiple drawings, (v) the form of the
documents required to be presented at the time of any drawing (together with the
exact wording of such documents or copies thereof), (vi) the expiry date of such
Letter of Credit (which shall conform to the provisions of paragraph (b) above)
and (vii) if such Letter of Credit is to be in a Foreign Currency, the relevant
Foreign Currency. The Administrative Agent shall give to each Lender prompt
written or telecopy advice of the issuance of any Letter of Credit. Each
determination by the Administrative Agent as to whether or not a Letter of
Credit constitutes a Financial Letter of Credit shall be conclusive and binding
upon the applicable Borrower and the Lenders.
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(d) By the issuance of a Letter of Credit and without any further
action on the part of the applicable Issuing Lender or the Lenders in respect
thereof, the applicable Issuing Lender hereby grants to each Lender, and each
Lender hereby acquires from such Issuing Lender, a participation in such Letter
of Credit equal to such Lender's Revolving Credit Percentage at the time of any
drawing thereunder of the stated amount of such Letter of Credit, effective upon
the issuance of such Letter of Credit. In addition, the applicable Issuing
Lender hereby grants to each Lender, and each Lender hereby acquires from such
Issuing Lender, a participation in each Designated Letter of Credit equal to
such Lender's Revolving Credit Percentage at the time of any drawing thereunder
of the stated amount of such Designated Letter of Credit, effective on the date
such Designated Letter of Credit is designated as a Letter of Credit hereunder.
In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of each Issuing Lender, in accordance with paragraph (f) below, such
Lender's Revolving Credit Percentage of each unreimbursed LC Disbursement made
by such Issuing Lender; provided, however, that the Lenders shall not be
obligated to make any such payment with respect to any payment or disbursement
made under any Letter of Credit to the extent resulting from the gross
negligence or willful misconduct of such Issuing Lender.
(e) Each Lender acknowledges and agrees that its acquisition of
participations pursuant to paragraph (d) above in respect of Letters of Credit
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender or the applicable Borrower
may have against any Issuing Lender, any Borrower or any other Person, for any
reason whatsoever; (ii) the occurrence or continuance of a Default or an Event
of Default or the failure to satisfy any of the conditions specified in Article
IV; (iii) any adverse change in the condition (financial or otherwise) of the
applicable Borrower; (iv) any breach of this Agreement by any Borrower or any
Lender; or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
(f) On the date on which it shall have ascertained that any
documents presented under a Letter of Credit appear to be in conformity with the
terms and conditions of such Letter of Credit, the applicable Issuing Lender
shall give written or telecopy notice to the applicable Borrower and the
Administrative Agent of the amount of the drawing and the date on which payment
thereon has been or will be made. If the applicable Issuing Lender shall not
have received from the applicable Borrower the payment required pursuant to
paragraph (g) below by 12:00 noon, New York City time, two Business Days after
the date on which payment of a draft presented under any Letter of Credit has
been made, such Issuing Lender shall so notify the Administrative Agent, which
shall in turn promptly notify each Lender, specifying in the notice to each
Lender such Lender's Revolving Credit Percentage of such LC Disbursement. Each
Lender shall pay to the Administrative Agent, not later than 2:00 p.m., New York
City time, on such second Business Day, such Lender's Revolving Credit
Percentage of such LC Disbursement (which obligation shall be expressed in
Dollars only), which the Administrative Agent shall promptly pay to the
applicable Issuing Lender. The Administrative Agent will promptly remit to each
Lender such Lender's Revolving Credit Percentage of any amounts subsequently
received by the Administrative Agent from the applicable Borrower in respect of
such LC Disbursement; provided, that (i) amounts so received for the account of
any Lender
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prior to payment by such Lender of amounts required to be paid by it hereunder
in respect of any LC Disbursement and (ii) amounts representing interest at the
rate provided in paragraph (g) below on any LC Disbursement for the period prior
to the payment by such Lender of such amounts shall in each case be remitted to
the applicable Issuing Lender.
(g) If an Issuing Lender shall pay any draft presented under a
Letter of Credit, the applicable Borrower shall pay to such Issuing Lender an
amount equal to the amount of such draft before 12:00 noon, New York City time,
on the second Business Day immediately following the date of payment of such
draft, together with interest (if any) on such amount at a rate per annum equal
to the interest rate in effect for ABR Loans (or, in the case of Foreign
Currency denominated Letters of Credit, the rate which would reasonably and
customarily be charged by such Issuing Lender on outstanding loans denominated
in the relevant Foreign Currency) from (and including) the date of payment of
such draft to (but excluding) the date on which such Borrower shall have repaid,
or the Lenders shall have refunded, such draft in full (which interest shall be
payable on such second Business Day and from time to time thereafter on demand
until such Borrower shall have repaid, or the Lenders shall have refunded, such
draft in full). In the event that such drawing shall be refunded by the Lenders
as provided in Section 2.7(f), the applicable Borrower shall pay to the
Administrative Agent, for the account of the Lenders, quarterly on the last day
of each March, June, September and December, interest on the amount so refunded
at a rate per annum equal to the interest rate in effect for ABR Loans from (and
including) the date of such refunding to (but excluding) the date on which the
amount so refunded by the Lenders shall have been paid in full in Dollars by
such Borrower. Each payment made to an Issuing Lender by the applicable Borrower
pursuant to this paragraph shall be made at such Issuing Lender's address for
notices specified herein in lawful money of (x) the United States of America (in
the case of payments made on Dollar-denominated Letters of Credit) or (y) the
applicable foreign jurisdiction (in the case of payments on Foreign
Currency-denominated Letters of Credit) and in immediately available funds. The
obligation of the applicable Borrower to pay the amounts referred to above in
this paragraph (g) (and the obligations of the Lenders under paragraphs (d) and
(f) above) shall be absolute, unconditional and irrevocable and shall be
satisfied strictly in accordance with their terms irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Issuing Lender Agreement or of the obligations of any
Borrower under this Agreement or any Issuing Lender Agreement;
(ii) the existence of any claim, setoff, defense or other
right which any Borrower or any other Person may at any time have
against the beneficiary under any Letter of Credit, the Agents, any
Issuing Lender or any Lender (other than the defense of payment in
accordance with the terms of this Agreement or a defense based on
the gross negligence or willful misconduct of the applicable Issuing
Lender) or any other Person in connection with this Agreement or any
other transaction;
(iii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect;
provided, that payment by the applicable Issuing Lender under such
Letter of Credit against presentation of such
34
draft or document shall not have constituted gross negligence or
willful misconduct;
(iv) payment by the applicable Issuing Lender under a Letter
of Credit against presentation of a draft or other document which
does not comply in any immaterial respect with the terms of such
Letter of Credit; provided, that such payment shall not have
constituted gross negligence or willful misconduct; or
(v) any other circumstance or event whatsoever, whether or not
similar to any of the foregoing; provided, that such other
circumstance or event shall not have been the result of gross
negligence or willful misconduct of the applicable Issuing Lender.
It is understood that in making any payment under a Letter of Credit
(x) such Issuing Lender's exclusive reliance on the documents presented to it
under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereof equals the
amount of such draft and whether or not any document presented pursuant to such
Letter of Credit proves to be forged, fraudulent or invalid in any respect, if
such document on its face appears to be in order, and whether or not any other
statement or any other document presented pursuant to such Letter of Credit
proves to be forged or invalid or any statement therein proves to be inaccurate
or untrue in any respect whatsoever, and (y) any noncompliance in any immaterial
respect of the documents presented under a Letter of Credit with the terms
thereof shall, in either case, not, in and of itself, be deemed willful
misconduct or gross negligence of such Issuing Lender.
(h) (i) Notwithstanding anything to the contrary contained in this
Agreement, for purposes of calculating any LC Fee payable in respect of any
Business Day, the Administrative Agent shall convert the amount available to be
drawn under any Letter of Credit denominated in Foreign Currency into an amount
of Dollars based upon the relevant Foreign Exchange Rate in effect for such day.
If on any date the Administrative Agent shall notify the applicable Borrower
that, by virtue of any change in the Foreign Exchange Rate of any Foreign
Currency in which a Letter of Credit is denominated, the Total Revolving
Facility Exposure shall exceed the Total Revolving Commitment then in effect,
then, within three Business Days after the date of such notice, such Borrower
shall prepay the Revolving Credit Loans and/or the Swingline Loans to the extent
necessary to eliminate such excess. Each Issuing Lender which has issued a
Letter of Credit denominated in a Foreign Currency agrees to notify the
Administrative Agent of the average daily outstanding amount thereof for any
period in respect of which LC Fees are payable and, upon request by the
Administrative Agent, for any other date or period. For all purposes of this
Agreement, determinations by the Administrative Agent of the Dollar equivalent
of any amount expressed in a Foreign Currency shall be made on the basis of
Foreign Exchange Rates reset monthly (or on such other periodic basis as shall
be selected by the Administrative Agent in its sole discretion) and shall in
each case be conclusive absent manifest error.
(ii) Notwithstanding anything to the contrary contained in this
Section 2.7, prior to demanding any reimbursement from the Lenders pursuant to
Section 2.7(f) in respect of any Letter of Credit denominated in a Foreign
Currency, the relevant Issuing Lender shall convert the
35
obligation of the applicable Borrower under Section 2.7(g) to reimburse such
Issuing Lender in such Foreign Currency into an obligation to reimburse such
Issuing Lender (and, in turn, the Lenders) in Dollars. The amount of any such
converted obligation shall be computed based upon the relevant Foreign Exchange
Rate (as quoted by the Administrative Agent to such Issuing Lender) in effect
for the day on which such conversion occurs.
SECTION 2.8. Conversion and Continuation Options.
(a) The relevant Borrower may elect from time to time to (i) convert
Eurocurrency Revolving Loans denominated in Dollars (or, subject to Section
2.10(f), a portion thereof) to ABR Revolving Loans or (ii) convert Eurocurrency
US$-Canadian Loans (or, subject to Section 2.10(f), a portion thereof) to ABR
US$-Canadian Loans, in each case on the last day of an Interest Period with
respect thereto by giving the Administrative Agent prior irrevocable notice of
such election. The relevant Borrower may elect from time to time to (x) convert
ABR Revolving Loans (subject to Section 2.10(f)) to Eurocurrency Revolving Loans
denominated in Dollars or (y) convert ABR US$-Canadian Loans (subject to Section
2.10(f)) to Eurocurrency US$-Canadian Loans, in each case by giving the
Administrative Agent at least three Business Days' prior irrevocable notice of
such election. Any such notice of conversion to Eurocurrency Revolving Loans or
Eurocurrency US$-Canadian Loans shall specify the length of the initial Interest
Period therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender or US-Canadian Lender, as applicable, thereof. All
or any part of outstanding Eurocurrency Revolving Loans, ABR Revolving Loans,
Eurocurrency US$-Canadian Loans or ABR US$-Canadian Loans may be converted as
provided herein; provided, that no ABR Revolving Loan or ABR US$-Canadian Loan
may be converted into a Eurocurrency Revolving Loan or Eurocurrency US$-Canadian
Loan, respectively, when any Event of Default has occurred and is continuing and
the Administrative Agent has or the Required Facility Lenders with respect to
the relevant Facility have determined in its or their sole discretion not to
permit such a conversion.
(b) Any Eurocurrency Revolving Loan or Eurocurrency US$ Canadian
Loan (or, in each case, subject to Section 2.10(f), a portion thereof) may be
continued as such upon the expiration of the then current Interest Period with
respect thereto by the relevant Borrower giving irrevocable notice to the
Administrative Agent, not less than three Business Days prior to the last day of
the then current Interest Period with respect thereto, of the length of the next
Interest Period to be applicable to such Eurocurrency Loans; provided, that no
Eurocurrency Revolving Loan or Eurocurrency US$ Canadian Loan may be continued
as such when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Facility Lenders with respect to the
relevant Facility have determined in its or their sole discretion not to permit
such a continuation; and provided, further, that if the relevant Borrower shall
fail to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such
Eurocurrency Revolving Loans or Eurocurrency US$ Canadian Loans shall be
automatically converted to ABR Revolving Loans or ABR US$ Canadian Loans,
respectively, on the last day of such then expiring Interest Period (in the case
of Multi-Currency Revolving Loans, such Loan shall be converted to Dollars at
the Foreign Exchange Rate on such date before being converted to ABR Revolving
Loans). Upon receipt of any notice from a Borrower pursuant to this Section
2.8(b), the Administrative Agent shall promptly notify each Lender or
US-Canadian Lender, as applicable, thereof. The Administrative
36
Agent shall promptly notify the applicable Borrower upon the determination in
accordance with this Section 2.8(b), by it or the Required Facility Lenders, not
to permit such a continuation.
SECTION 2.9. Fees.
(a) (i) Viacom agrees to pay to the Administrative Agent for the
account of each Lender and (ii) Viacom agrees to cause a Canadian Borrower to
pay to the Canadian Administrative Agent for the account of each US-Canadian
Lender, a Facility Fee for the period from and including the Closing Date to the
Revolving Credit Maturity Date (or such earlier date on which the Commitments
shall terminate in accordance herewith), computed at a per annum rate equal to
the Applicable Facility Fee Rate on such Lender's Commitments or US-Canadian
Lender's Canadian Commitments (in each case, whether used or unused); provided
that, if such Lender or US-Canadian Lender, as applicable, continues to have any
Revolving Facility Exposure or Outstanding Canadian Extensions of Credit, as
applicable, after its Commitments terminate, then such Facility Fee shall
continue to accrue on the daily amount of such Lender's Revolving Facility
Exposure or US-Canadian Lender's Outstanding Canadian Extensions of Credit, as
applicable, from and including the date on which its Commitments terminate to
but excluding the date on which such Lender or US-Canadian Lender, as
applicable, ceases to have any Revolving Facility Exposure or Outstanding
Canadian Extensions of Credit, respectively. All Facility Fees shall be computed
on the basis of the actual number of days elapsed in a year of 360 days and
shall be payable quarterly in arrears on the last day of each March, June,
September and December, on the Revolving Credit Maturity Date or such earlier
date on which the Commitments shall be terminated, commencing on the first of
such dates to occur after the Closing Date.
(b) Viacom agrees to pay each Lender, through the Administrative
Agent, on the last day of each March, June, September and December and on the
Revolving Credit Maturity Date or the date on which the Revolving Commitment of
such Lender shall be terminated as provided herein and all Letters of Credit
issued hereunder shall have expired, a letter of credit fee (an "LC Fee")
computed at a per annum rate equal to the Applicable LC Fee Rate on such
Lender's Revolving Credit Percentage of the average daily undrawn amount of the
Financial Letters of Credit or Non-Financial Letters of Credit, as the case may
be, outstanding during the preceding quarter (or shorter period commencing with
the Closing Date or ending with the Revolving Credit Maturity Date or the date
on which the Revolving Commitment of such Lender shall have been terminated and
all Letters of Credit issued hereunder shall have expired). All LC Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days.
(c) Viacom agrees to pay to the Administrative Agent, for its own
account, the administrative agent's fees ("Administrative Agent's Fees")
provided for in the Administrative Agent Fee Letter at the times provided
therein.
(d) Each Borrower agrees to pay to each Issuing Lender, through the
Administrative Agent, for its own account, the applicable Issuing Lender Fees,
including, without limitation, a fronting fee at a rate to be determined by the
relevant Borrower and the relevant Issuing Lender payable on the last day of
each March, June, September and December to such Issuing Lender for the period
from and including the date of issuance of such Letter of Credit to, but not
including, the termination date of such Letter of Credit.
37
(e) (i) Viacom agrees to pay to the Administrative Agent for the
account of each Lender and (ii) Viacom agrees to cause a Canadian Borrower to
pay to the Canadian Administrative Agent for the account of each US-Canadian
Lender, on each Interest Payment Date for ABR Loans, a utilization fee (a
"Utilization Fee") at a rate per annum equal to the Applicable Utilization Fee
Rate for each Excess Utilization Day during the period covered by such Interest
Payment Date on such Lender's Revolving Facility Exposure or US-Canadian
Lender's Outstanding Canadian Extensions of Credit, as applicable, on such
Excess Utilization Day. All Utilization Fees shall be computed on the basis of
the actual number of days elapsed in a year of 360 days and shall be payable in
arrears.
(f) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent (or the Canadian Administrative
Agent, as applicable) for distribution, if and as appropriate, among the
relevant Lenders and US-Canadian Lenders or to the Issuing Lenders. Once paid,
none of the Fees shall be refundable under any circumstances (other than
corrections of errors in payment).
SECTION 2.10. Interest on Loans; Eurocurrency Tranches; Etc.
(a) Subject to the provisions of Section 2.11, Eurocurrency Loans
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 360 days) at a rate per annum equal to (i) in the case of each
Eurocurrency Revolving Loan and each Eurocurrency US$-Canadian Loan, the
Eurocurrency Rate for the Interest Period in effect for such Loan plus the
Applicable Eurocurrency Margin and (ii) in the case of each Eurocurrency
Competitive Loan, the Eurocurrency Rate for the Interest Period in effect for
such Loan plus the Margin offered by the Lender making such Loan and accepted by
the relevant Borrower pursuant to Section 2.3. The Eurocurrency Rate for each
Interest Period shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error. The Administrative
Agent shall promptly advise the relevant Borrower and the relevant Lenders or
US-Canadian Lenders, as applicable, of such determination.
(b) Subject to the provisions of Section 2.11, ABR Loans shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 365 or 366 days, as the case may be, when determined by reference to the
Prime Rate and over a year of 360 days at all other times) at a rate per annum
equal to the Alternate Base Rate. The Alternate Base Rate shall be determined by
the Administrative Agent, and such determination shall be conclusive absent
manifest error.
(c) Subject to the provisions of Section 2.11, Quoted Swingline
Loans shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 360 days) at a rate per annum equal to the relevant
Quoted Swingline Rate.
(d) Subject to the provisions of Section 2.11, each Absolute Rate
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed rate
of interest offered by the Lender making such Loan and accepted by the relevant
Borrower pursuant to Section 2.3.
38
(e) Interest on each Loan shall be payable on each applicable
Interest Payment Date.
(f) Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations, repayments and prepayments of
Eurocurrency Revolving Loans or Eurocurrency US$-Canadian Loans, as applicable,
hereunder and all selections of Interest Periods hereunder in respect of
Eurocurrency Revolving Loans or Eurocurrency US$-Canadian Loans, as applicable,
shall be in such amounts and shall be made pursuant to such elections so that,
after giving effect thereto, the aggregate principal amount of the Eurocurrency
Revolving Loans or Eurocurrency US$-Canadian Loans, as applicable, comprising
each Eurocurrency Tranche shall be equal to $50,000,000 (or the Dollar
equivalent thereof) or a whole multiple of $5,000,000 (or the Dollar equivalent
thereof) in excess thereof. Unless otherwise agreed by the Administrative Agent,
in no event shall there be more than 25 Eurocurrency Tranches outstanding at any
time.
(g) If no election as to the Type of Revolving Credit Loan or
US$-Canadian Loan is specified in any notice of borrowing with respect thereto,
then the requested Loan shall be an ABR Loan, unless such request is for a
Revolving Credit Loan denominated in a Multi-Currency. If no Interest Period
with respect to a Eurocurrency Revolving Loan or a Eurocurrency US$-Canadian
Loan is specified in any notice of borrowing, conversion or continuation, then
an Interest Period of one month's duration shall be deemed to have been
selected. The Interest Period with respect to a Eurocurrency Competitive Loan
shall in no case be less than one month's duration.
SECTION 2.11. Default Interest.
If all or a portion of the principal amount of any Loan shall not be
paid when due (whether at the stated maturity, by acceleration or otherwise),
all outstanding Loans (whether or not overdue) shall bear interest at a rate per
annum which is equal to the rate that would otherwise be applicable thereto
pursuant to the provisions of Section 2.10 plus 2% and (b) if all or a portion
of any LC Disbursement, any interest payable on any Loan or LC Disbursement or
any Fee or other amount payable hereunder shall not be paid when due (whether at
the stated maturity, by acceleration or otherwise), such overdue amount shall
bear interest at a rate per annum equal to the rate otherwise applicable to ABR
Loans pursuant to Section 2.10(b) plus 2%, in each case, with respect to clauses
(a) and (b) above, from the date of such non-payment until such amount is paid
in full (as well after as before judgment). Notwithstanding the foregoing, if
all or a portion of the principal amount of any Loan shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), C$ Loans shall
bear interest at the rate set forth in subsection 3.4(b) of Annex II.
SECTION 2.12. Alternate Rate of Interest.
(a) In the event, and on each occasion, that on the day two Business
Days prior to the commencement of any Interest Period for a Eurocurrency Loan
(i) the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon each Borrower) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurocurrency Rate for such Interest Period, or
39
(ii) the Administrative Agent shall have received notice from the Required
Facility Lenders in respect of the relevant Facility that the Eurocurrency Rate
determined or to be determined for such Interest Period will not adequately and
fairly reflect the cost to such Lenders or US-Canadian Lenders, as applicable,
(as conclusively certified by such Lenders or US-Canadian Lenders, as
applicable) of making or maintaining their affected Loans during such Interest
Period, the Administrative Agent shall, as soon as practicable thereafter, give
written or telecopy notice of such determination to the Borrowers and the
Lenders and the US-Canadian Lenders, as relevant. In the event of any such
determination, until the Administrative Agent shall have advised the Borrowers
and the Lenders and the US-Canadian Lenders, as relevant, that the circumstances
giving rise to such notice no longer exist, if applicable to the Facility for
which notice was given, (i) any request by a Borrower for a Eurocurrency
Competitive Loan pursuant to Section 2.3 to be made after such determination
shall be of no force and effect and shall be denied by the Administrative Agent,
(ii) any request by a Borrower for a Eurocurrency Revolving Loan denominated in
Dollars or a US$-Canadian Loan to be made after such determination shall be
deemed to be a request for an ABR Loan (from the relevant Facility), (iii) any
request by a Borrower for a Multi-Currency Revolving Loan to be made after such
determination shall be deemed to be a request for an ABR Loan in an aggregate
principal amount equal to the Dollar equivalent (as determined by the Foreign
Exchange Rate on such date) of the relevant Multi-Currency and (iv) any request
by a Borrower for conversion into or a continuation of a Eurocurrency Revolving
Loan or a US$-Canadian Loan pursuant to Section 2.8 to be made after such
determination shall have no force and effect (in the case of a requested
conversion) or shall be deemed to be a request for a conversion into an ABR Loan
(in the case of a requested continuation; provided, that any request for a
conversion of a Multi-Currency Revolving Loan shall be deemed to be a request
for a conversion into an ABR Loan in an aggregate principal amount equal to the
Dollar equivalent (as determined by the Foreign Exchange Rate on such date) of
the relevant Multi-Currency. Also, in the event of any such determination, the
relevant Borrower shall be entitled, in its sole discretion, if the requested
Competitive Loan has not been made, to cancel its acceptance of the Competitive
Bids or to cancel its Competitive Bid Request relating thereto. Each
determination by the Administrative Agent or the Required Facility Lenders (with
respect to such Facility) hereunder shall be conclusive absent manifest error.
SECTION 2.13. Termination, Reduction and Increase of Commitments.
(a) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, Viacom may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Revolving Commitments; provided, however, that (i) each partial reduction of the
Revolving Commitments shall be in a minimum principal amount of $10,000,000 and
in integral multiples of $1,000,000 in excess thereof and (ii) no such
termination or reduction shall be made if, after giving effect thereto and to
any prepayments of the Loans made on the effective date thereof, (x) the
Outstanding Revolving Extensions of Credit of any Lender would exceed such
Lender's Commitment then in effect or (y) the Total Revolving Facility Exposure
would exceed the Total Revolving Commitment then in effect. The Administrative
Agent shall promptly advise the Lenders of any notice given pursuant to this
Section 2.13(a).
(b) Except as otherwise provided in Section 2.21, each reduction in
the Revolving Commitments hereunder shall be made ratably among the Lenders in
accordance with
40
their respective Commitments. Viacom agrees to pay to the Administrative Agent
for the account of the Lenders, on the date of termination or reduction of the
Revolving Commitments, the Facility Fees on the amount of the Revolving
Commitments so terminated or reduced accrued through the date of such
termination or reduction.
(c) Viacom shall have the right at any time and from time to time to
increase the Total Revolving Commitments and the Total Canadian Commitments to
an aggregate amount, when added to the aggregate amount of Total Commitments (as
defined under the 364-Day Credit Agreement) under the 364-Day Credit Agreement,
not to exceed $4,500,000,000 (i) by requesting that one or more banks or other
financial institutions not a party to this Agreement become a Lender or a
US-Canadian Lender hereunder or (ii) by requesting that any Lender or
US-Canadian Lender already party to this Agreement increase the amount of such
Lender's Revolving Commitment or such US-Canadian Lender's Canadian Commitment,
as applicable; provided, that the addition of any bank or financial institution
pursuant to clause (i) above shall be subject to the consent of the
Administrative Agent (which consent shall not be unreasonably withheld);
provided further, the Revolving Commitment or Canadian Commitment of any bank or
other financial institution pursuant to clause (i) above, shall be in an
aggregate principal amount at least equal to $10,000,000; provided further, the
amount of the increase of any Lender's Revolving Commitment or US-Canadian
Lender's Canadian Commitment, as applicable, pursuant to clause (ii) above when
added to the amount of such Lender's Revolving Commitment or such US-Canadian
Lender's Canadian Commitment, respectively, before the increase, shall be in an
aggregate principal amount at least equal to $10,000,000.
(d) Any additional bank, financial institution or other entity which
elects to become a party to this Agreement and obtain a Revolving Commitment or
Canadian Commitment pursuant to clause (c) of this Section 2.13 above shall
execute a New Lender Supplement (each, a "New Lender Supplement") with Viacom
and the Administrative Agent, substantially in the form of Exhibit G, whereupon
such bank, financial institution or other entity (herein called a "New Lender")
shall become a Lender or a US-Canadian Lender, as applicable, for all purposes
and to the same extent as if originally a party hereto and shall be bound by and
entitled to the benefits of this Agreement, and Schedule 1.1 shall be deemed to
be amended to add the name and Revolving Commitment or Canadian Commitment, as
applicable, of such New Lender. Any additional bank, financial institution or
other entity, which elects to obtain a Canadian Commitment, shall also certify
that it is a bank listed on Schedule I, Schedule II or Schedule III to the Bank
Act (Canada).
(e) Any increase in the Total Revolving Commitment or Total Canadian
Commitment pursuant to clause (c)(ii) of this Section 2.13 shall be effective
only upon the execution and delivery to Viacom and the Administrative Agent of a
commitment increase letter in substantially the form of Exhibit H hereto (a
"Commitment Increase Letter"), which Commitment Increase Letter shall be
delivered to the Administrative Agent not less than five Business Days prior to
the Commitment Increase Date and shall specify (i) the amount of the Revolving
Commitment or Canadian Commitment, as applicable, of any bank or financial
institution not a party to this agreement which is becoming a Lender or
US-Canadian Lender, as applicable, or the amount of any increase in the
Revolving Commitment of any Lender or Canadian Commitment of any US-Canadian
Lender, as applicable, and (ii) the date such increase is to become effective
(the "Commitment Increase Date"). Any Lender which elects to obtain a
41
Canadian Commitment shall certify that it is a bank listed on Schedule I,
Schedule II or Schedule III to the Bank Act (Canada).
(f) Any increase in the Total Revolving Commitment or Total Canadian
Commitment, as applicable, pursuant to this Section 2.13 shall not be effective
unless:
(i) no Default or Event of Default shall have occurred and be
continuing on the Commitment Increase Date;
(ii) each of the representations and warranties made by Viacom
and the Subsidiary Borrowers (including the Canadian Borrowers) in
Sections 3.1, 3.2, 3.4, 3.5 and 3.6 shall be true and correct in all
material respects on the Commitment Increase Date with the same
effect as though made on and as of such date, except to the extent
such representations and warranties expressly relate to an earlier
date in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date;
(iii) the Administrative Agent shall have received each of (A)
a certificate of the corporate secretary or assistant secretary of
the Borrowers or the Canadian Borrowers, as applicable, as to the
taking of any corporate action necessary in connection with such
increase and (B) an opinion or opinions of general counsel to the
Borrowers or the Canadian Borrowers, as applicable, as to their
corporate power and authority to borrow hereunder after giving
effect to such increase and such other matters relating thereto as
the Administrative Agent and its counsel may reasonably request.
Each notice requesting an increase in the Total Revolving Commitments or Total
Canadian Commitments, as applicable, pursuant to this Section 2.13 shall
constitute a certification to the effect set forth in clauses (i) and (ii) of
this Section 2.13(f).
(g) Upon a decrease, pursuant to Section 2.13(a) or (b), in the
Total Revolving Commitments, Viacom may decrease the Multi-Currency Sublimit
with respect to any or all Multi-Currencies in a minimum principal amount of
$10,000,000 and in integral multiples of $1,000,000 in excess thereof. No such
termination or reduction shall be made if, after giving effect thereto and to
any prepayments of the Loans made on the effective date thereof, the
Multi-Currency Sublimit with respect to each applicable Multi-Currency would be
less than the Multi-Currency Revolving Loans outstanding in such Multi-Currency
at such time. Upon an increase, pursuant to Section 2.13(c), in the Total
Revolving Commitments or Total Canadian Commitments, as applicable, the
Administrative Agent, with the consent of the Required Facility Lenders in
respect of the relevant Facility, may increase the Multi-Currency Sublimit with
respect to Canadian Dollars or any or all Multi-Currencies to an amount not in
excess of the Total Canadian Commitments or Total Revolving Commitments, as
applicable.
(h) No Lender or US-Canadian Lender shall at any time be required to
agree to a request of Viacom to increase its Commitment or obligations
hereunder.
42
SECTION 2.14. Optional Prepayments of Revolving Credit Loans.
The relevant Borrower may at any time and from time to time prepay
the Revolving Credit Loans, in whole or in part, without premium or penalty,
upon giving irrevocable written or telecopy notice (or telephone notice promptly
confirmed by written or telecopy notice) to the Administrative Agent: (i) before
10:00 a.m., New York City time, three Business Days prior to prepayment, in the
case of Eurocurrency Revolving Loans, and (ii) before 10:00 a.m., New York City
time, one Business Day prior to prepayment, in the case of ABR Revolving Loans.
Such notice shall specify the date and amount of prepayment and whether the
prepayment is of Eurocurrency Revolving Loans, ABR Revolving Loans or a
combination thereof, and, if of a combination thereof, the amount allocable to
each. If a Eurocurrency Revolving Loan is prepaid on any day other than the last
day of the Interest Period applicable thereto, the relevant Borrower shall also
pay any amounts owing pursuant to Section 2.16. Upon receipt of any such notice
the Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with (except in the case of ABR Revolving
Loans) accrued interest to such date on the amount prepaid. Partial prepayments
of Revolving Credit Loans shall be in an aggregate principal amount of
$10,000,000 or a whole multiple of $1,000,000 in excess thereof.
SECTION 2.15. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if after the Closing
Date any change in applicable law or regulation (including any change in the
reserve percentages provided for in Regulation D) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof shall change the basis of taxation of
payments to any Lender or US-Canadian Lender of the principal of or interest on
any Eurocurrency Loan, Absolute Rate Loan or C$ Loan made by such Lender or US-
Canadian Lender (other than changes in respect of taxes imposed on the overall
net income of such Lender or US-Canadian Lender by the jurisdiction in which
such Lender or US-Canadian Lender has its principal office (or in which it holds
any Eurocurrency Loan, Absolute Rate Loan or C$ Loan) or by any political
subdivision or taxing authority therein and other than taxes that would not have
been imposed but for the failure of such Lender or US-Canadian Lender to comply
with applicable certification, information, documentation or other reporting
requirements), or shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of or deposits with or for the
account of such Lender or US-Canadian Lender or shall impose on such Lender or
US-Canadian Lender or the London interbank market or Toronto interbank market
(with respect to C$ Loans), as applicable, any other condition affecting this
Agreement or any Eurocurrency Loan, Absolute Rate Loan or C$ Loan made by such
Lender or US-Canadian Lender and the result of any of the foregoing shall be to
increase the cost to such Lender or US-Canadian Lender of making or maintaining
any Eurocurrency Loan, Absolute Rate Loan or C$ Loan or to reduce the amount of
any sum received or receivable by such Lender or US-Canadian Lender hereunder
(whether of principal, interest or otherwise) in respect of any Eurocurrency
Loan, Absolute Rate Loan or C$ Loan by an amount deemed by the applicable Lender
or US-Canadian Lender to be material, then the relevant Borrower or Canadian
Borrower (with respect to C$ Loans) agrees to pay to such Lender or US-Canadian
Lender, as applicable, as provided in paragraph (c) below such additional amount
or amounts as will compensate such
43
Lender or US-Canadian Lender, as applicable, for such additional costs incurred
or reduction suffered. Notwithstanding the foregoing, no Lender shall be
entitled to request compensation under this paragraph with respect to any
Competitive Loan if the change giving rise to such request shall, or in good
faith should, have been taken into account in formulating the Competitive Bid
pursuant to which such Competitive Loan shall have been made.
(b) If any Lender, any US-Canadian Lender or any Issuing Lender
shall have determined that the adoption after the Closing Date hereof of any
law, rule, regulation or guideline regarding capital adequacy, or any change in
any law, rule, regulation or guideline regarding capital adequacy or in the
interpretation or administration of any of the foregoing by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender, US-Canadian Lender (or any
lending office of such Lender or US-Canadian Lender) or Issuing Lender or any
Lender's, US-Canadian Lender's or Issuing Lender's holding company with any
request or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Lender's, US-Canadian
Lender's or Issuing Lender's capital or on the capital of such Lender's,
US-Canadian Lender's or Issuing Lender's holding company, if any, as a
consequence of this Agreement or the Loans made by such Lender or US-Canadian
Lender, as applicable, or the LC Exposure of such Lender or Letters of Credit
issued by such Issuing Lender pursuant hereto to a level below that which such
Lender or Issuing Lender or such Lender's or Issuing Lender's holding company
could have achieved but for such applicability, adoption, change or compliance
(taking into consideration such Lender's or Issuing Lender's policies and the
policies of such Lender's or Issuing Lender's holding company with respect to
capital adequacy) by an amount deemed by such Lender or Issuing Lender to be
material, then from time to time Viacom agrees to pay to such Lender,
US-Canadian Lender or Issuing Lender as provided in paragraph (c) below such
additional amount or amounts as will compensate such Lender, US-Canadian Lender
or Issuing Lender or such Lender's, US-Canadian Lender's or Issuing Lender's
holding company for any such reduction suffered.
(c) A certificate of each Lender, US-Canadian Lender or Issuing
Lender setting forth such amount or amounts as shall be necessary to compensate
such Lender, US-Canadian Lender or Issuing Lender as specified in paragraph (a)
or (b) above, as the case may be, and the basis therefor in reasonable detail
shall be delivered to the relevant Borrower or Canadian Borrower and shall be
conclusive absent manifest error. The relevant Borrower or Canadian Borrower
shall pay each Lender, US-Canadian Lender or Issuing Lender the amount shown as
due on any such certificate within 30 days after its receipt of the same. Upon
the receipt of any such certificate, the relevant Borrower shall be entitled, in
its sole discretion, if any requested Loan has not been made, to cancel its
acceptance of the relevant Competitive Bids or to cancel the Competitive Bid
Request relating thereto, subject to Section 2.16.
(d) Except as provided in this paragraph, failure on the part of any
Lender or US-Canadian Lender, as applicable, to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to any period shall not constitute a waiver of
such Lender's or US-Canadian Lender's right to demand compensation with respect
to any other period. The protection of this Section 2.15 shall be available to
each Lender and US-Canadian Lender regardless of any possible contention of the
invalidity or
44
inapplicability of the law, rule, regulation, guideline or other change or
condition which shall have occurred or been imposed so long as it shall be
customary for Lenders or US-Canadian Lenders, as applicable, affected thereby to
comply therewith. No Lender or US-Canadian Lender shall be entitled to
compensation under this Section 2.15 for any costs incurred or reductions
suffered with respect to any date unless it shall have notified the relevant
Borrower or Canadian Borrower that it will demand compensation for such costs or
reductions under paragraph (c) above not more than 90 days after the later of
(i) such date and (ii) the date on which it shall have become aware of such
costs or reductions. Notwithstanding any other provision of this Section 2.15,
no Lender or US-Canadian Lender shall demand compensation for any increased cost
or reduction referred to above if it shall not at the time be the general policy
or practice of such Lender or US-Canadian Lender to demand such compensation in
similar circumstances under comparable provisions of other credit agreements, if
any. In the event any Borrower shall reimburse any Lender or US-Canadian Lender
or any Canadian Borrower shall reimburse any US-Canadian Lender pursuant to this
Section 2.15 for any cost and such Lender or US-Canadian Lender shall
subsequently receive a refund in respect thereof, such Lender or US-Canadian
Lender, as applicable, shall so notify the relevant Borrower or Canadian
Borrower and, upon its request, will pay to such Borrower or Canadian Borrower
the portion of such refund which such Lender or US-Canadian Lender, as
applicable, shall determine in good faith to be allocable to the cost so
reimbursed. The covenants contained in this Section 2.15 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
SECTION 2.16. Indemnity.
Each Borrower agrees to indemnify each Lender and US-Canadian
Lender, as applicable, and each Canadian Borrower agrees to indemnify each US-
Canadian Lender against any loss or expense described below which such Lender or
US-Canadian Lender may sustain or incur as a consequence of (a) any failure by
such Borrower or Canadian Borrower, as applicable, to fulfill on the date of any
borrowing hereunder the applicable conditions set forth in Article IV, (b) any
failure by such Borrower or Canadian Borrower, as applicable, to borrow,
continue or convert any Loan hereunder after irrevocable notice of such
borrowing, continuation or conversion has been given or deemed given or
Competitive Bids have been accepted pursuant to Article II, (c) any payment,
prepayment or conversion of a Eurocurrency Loan, Absolute Rate Loan or C$ Loan
made to such Borrower or Canadian Borrower, as applicable, required by any other
provision of this Agreement or otherwise made or deemed made, whatever the
circumstances may be that give rise to such payment, prepayment or conversion,
or any transfer of any such Loan pursuant to Section 2.21 or 9.4(b) or
subsection 3.8 of Annex II or, on a date other than the last day of the Interest
Period applicable thereto, or (d) if any breakage is incurred, any failure by a
Borrower to prepay a Eurodollar Loan on the date specified in a notice of
prepayment; provided, that any request for indemnification made by any Lender to
any Borrower or any Canadian Borrower or by any US-Canadian Lender to any
Canadian Borrower pursuant hereto shall be accompanied by such Lender's or US-
Canadian Lender's calculation of such amount to be indemnified. The loss or
expense for which such Lender or US-Canadian Lender shall be indemnified under
this Section 2.16 shall be equal to the excess, if any, as reasonably determined
by such Lender or US-Canadian Lender, as applicable, of (i) its cost of
obtaining the funds for the Loan being paid, prepaid, converted or not borrowed,
continued, prepaid or
45
converted (assumed to be the Eurocurrency Rate in the case of Eurocurrency
Loans) for the period from the date of such payment, prepayment, conversion or
failure to borrow, continue, prepay or convert to the last day of the Interest
Period for such Loan (or, in the case of a failure to borrow, continue, prepay
or convert, the Interest Period for such Loan which would have commenced on the
date of such failure) over (ii) the amount of interest (as reasonably determined
by the relevant Lender or US-Canadian Lender) that would be realized by such
Lender or US-Canadian Lender in reemploying the funds so paid, prepaid,
converted or not borrowed, continued, prepaid or converted for such period or
Interest Period, as the case may be; provided, however, that such amount shall
not include any loss of a Lender's or US-Canadian Lender's margin or spread over
its cost of obtaining funds as described above. A certificate of any Lender or
US-Canadian Lender setting forth any amount or amounts which such Lender or
US-Canadian Lender is entitled to receive pursuant to this Section 2.16 (with
calculations in reasonable detail) shall be delivered to the relevant Borrower
or Canadian Borrower and shall be conclusive absent manifest error. This
covenant shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
SECTION 2.17. Pro Rata Treatment; Funding Matters; Evidence of Debt.
(a) Except as required under Section 2.21, each payment or
prepayment of principal of any Revolving Credit Loan, each payment of interest
on the Revolving Credit Loans, each payment of LC Fees, each payment of Facility
Fees, and each reduction of the Commitments, shall be allocated pro rata among
the Lenders in accordance with their respective Revolving Commitments (or, if
such Revolving Commitments shall have expired or been terminated, in accordance
with their Outstanding Revolving Extensions of Credit). Each Lender agrees that
in computing such Lender's portion of any Revolving Credit Loan to be made
hereunder, the Administrative Agent may, in its discretion, round such Lender's
percentage of such Loan to the next higher or lower whole Dollar amount.
(b) Unless the Administrative Agent shall have received notice from
a Lender or US-Canadian Lender, as applicable, prior to the relevant borrowing
date that such Lender or US-Canadian Lender, as applicable, will not make
available to the Administrative Agent such Lender's portion or US-Canadian
Lender's portion of a borrowing, the Administrative Agent may assume that such
Lender or US-Canadian Lender, as applicable, has made such portion available to
the Administrative Agent on the date of such borrowing in accordance with this
Agreement and the Administrative Agent may, in reliance upon such assumption,
make available to the relevant Borrower on such date a corresponding amount. If
and to the extent that such Lender or US-Canadian Lender, as applicable, shall
not have made such portion available to the Administrative Agent, each of such
Lender or US-Canadian Lender, as applicable, and the relevant Borrower agrees to
repay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to such Borrower until the date such amount is repaid to the
Administrative Agent at (i) in the case of such Borrower, the interest rate
applicable at the time to the relevant Loan and (ii) in the case of such Lender
or US-Canadian Lender, as applicable, the Federal Funds Effective Rate. If such
Lender or US-Canadian Lender, as applicable, shall repay to the Administrative
Agent such corresponding amount, such amount shall constitute such Lender's Loan
or US Canadian Lender's Loan, as applicable, as part of such borrowing for the
purposes of this Agreement; provided, that such repayment shall not release such
Lender or US-Canadian
46
Lender, as applicable, from any liability it may have to such Borrower for the
failure to make such Loan at the time required herein.
(c) The failure of any Lender to make any Loan shall not in itself
relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender). The
failure of any US-Canadian Lender to make the US$-Canadian Loans to be made by
it on any Borrowing Date shall not relieve any other US-Canadian Lender of its
obligation, if any, hereunder to make its US$-Canadian Loans on such borrowing
date, but no US-Canadian Lender shall be responsible for the failure of any
other US-Canadian Lender to make the US$-Canadian Loans to be made by such other
US-Canadian Lender on such borrowing date.
(d) Each Lender may at its option make any Eurocurrency Loan by
causing any domestic or foreign branch or Lender Affiliate of such Lender to
make such Loan; provided, that any exercise of such option shall not affect the
obligation of the relevant Borrower to repay such Loan in accordance with the
terms of this Agreement.
(e) Each Lender and each US-Canadian Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness to such Lender or US-Canadian Lender, as applicable, resulting from
each Loan made by it from time to time, including the amounts of principal and
interest payable and paid to such Lender or US-Canadian Lender from time to time
under this Agreement. The Administrative Agent shall maintain accounts in which
it will record (i) the amount of each Loan made hereunder, the Borrower or
Canadian Borrower, as applicable, with respect to each Loan, the Type of each
Loan and each Interest Period, if any, applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from each
Borrower or Canadian Borrower, as applicable, to each Lender or US-Canadian
Lender, as applicable, hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder from any Borrower or Canadian Borrower, as
applicable, and each Lender's or US-Canadian Lender's share thereof. The entries
made in the accounts maintained pursuant to this paragraph (e) shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations therein recorded; provided, however, that the failure
of any Lender, US-Canadian Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligations of
any Borrower or Canadian Borrower to repay the Loans in accordance with their
terms.
(f) In order to expedite the transactions contemplated by this
Agreement, each Subsidiary Borrower and Canadian Borrower shall be deemed, by
its execution and delivery of a Subsidiary Borrower Request, to have appointed
Viacom to act as agent on its behalf for the purpose of (a) giving any notices
contemplated to be given by such Subsidiary Borrower or Canadian Borrower, as
applicable, pursuant to this Agreement, including, without limitation, borrowing
notices, prepayment notices, continuation notices, conversion notices,
competitive bid requests and competitive bid acceptances or rejections and (b)
paying on behalf of such Subsidiary Borrower or Canadian Borrower, as
applicable, any Subsidiary Borrower Obligations owing by the relevant Subsidiary
Borrower or Canadian Borrower; provided, that each
47
Subsidiary Borrower and Canadian Borrower shall retain the right, in its
discretion, to directly give any or all of such notices or make any or all of
such payments.
(g) The Administrative Agent shall promptly notify the Lenders and
the US-Canadian Lenders upon receipt of any Subsidiary Borrower Designation and
Subsidiary Borrower Request. The Administrative Agent shall promptly notify the
Swingline Lenders upon receipt of any designation of a Subsidiary Borrower as a
Swingline Borrower.
SECTION 2.18. Sharing of Setoffs.
Except to the extent that this Agreement provides for payments to be
allocated to Revolving Credit Loans, Swingline Loans or Competitive Loans, as
the case may be, each Lender agrees that if it shall, through the exercise of a
right of banker's lien, setoff or counterclaim against any Borrower, or pursuant
to a secured claim under Section 506 of Title 11 of the United States Code or
other security or interest arising from, or in lieu of, such secured claim,
received by such Lender under any applicable bankruptcy, insolvency or other
similar law or otherwise, or by any other means (other than pursuant to any
provision of this Agreement), obtain payment (voluntary or involuntary) in
respect of any category of its Loans or such Lender's Revolving Credit
Percentage of any LC Disbursement as a result of which the unpaid principal
portion of such Loans or the unpaid portion of such Lender's Revolving Credit
Percentage of the LC Disbursements shall be proportionately less than the unpaid
principal portion of such Loans or the unpaid portion of the Revolving Credit
Percentage of the LC Disbursements of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in
such Loans or the Revolving Credit Percentage of the LC Disbursements of such
other Lender, so that the aggregate unpaid principal amount of such Loans and
participations in such Loans held by each Lender or the Revolving Credit
Percentage of LC Disbursements and participations in LC Disbursements held by
each Lender shall be in the same proportion to the aggregate unpaid principal
amount of all such Loans or LC Disbursements then outstanding as the principal
amount of such Loans or the Revolving Credit Percentage of LC Disbursements of
each Lender prior to such exercise of banker's lien, setoff or counterclaim or
other event was to the principal amount of all such Loans or LC Disbursements
outstanding prior to such exercise of banker's lien, setoff or counterclaim or
other event; provided, however, that, if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.18 and the payment giving
rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest, unless the Lender from
which such payment is recovered is required to pay interest thereon, in which
case each Lender returning funds to such Lender shall pay its pro rata share of
such interest. Any Lender holding a participation in a Loan or LC Disbursement
deemed to have been so purchased may exercise any and all rights of banker's
lien, setoff or counterclaim with respect to any and all moneys owing by any
Borrower to such Lender by reason thereof as fully as if such Lender had made a
Loan directly to such Borrower or issued a Letter of Credit for the account of
such Borrower in the amount of such participation.
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SECTION 2.19. Payments.
(a) Except as otherwise expressly provided herein, each Borrower
shall make each payment (including principal of or interest on any Loan or any
Fees or other amounts) hereunder without setoff or counterclaim and shall make
each such payment not later than 12:00 noon, New York City time, on the date
when due in Dollars to the Administrative Agent at its offices at The Chase
Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in immediately
available funds. Notwithstanding the foregoing, each Borrower shall make each
payment with respect to any Loan denominated in any Multi-Currency (including
principal of or interest on any such Loan or other amounts) hereunder without
setoff or counterclaim and shall make each such payment not later than 12:00
noon, London time, on the date when due in the relevant Multi-Currency to the
Administrative Agent at its offices at Chase Manhattan International Ltd., 9
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in immediately available
funds.
(b) Whenever any payment (including principal of or interest on any
Loan or any Fees or other amounts) hereunder shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or Fees, if applicable.
SECTION 2.20. Taxes.
(a) Any and all payments by each Borrower hereunder shall be made,
in accordance with Section 2.19, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, duties, charges, fees,
deductions, charges or withholdings, and all liabilities with respect thereto
imposed by or on behalf of any Governmental Authority, excluding net income
taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former connection
between the Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Administrative Agent's or such Lender's having executed, delivered or
performed its obligations or received a payment under, or enforced, this
Agreement or any other Loan Document) (all such nonexcluded taxes, levies,
imposts, duties, charges, fees, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If any Borrower shall be
required by law to deduct any Taxes or Other Taxes from or in respect of any sum
payable to any Agent or any Lender hereunder, (i) the sum payable shall be
increased by the amount necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.20) such Agent or such Lender shall receive an amount equal to the sum it
would have received had no such deductions been made, (ii) such Borrower shall
make such deductions and (iii) such Borrower shall pay the full amount deducted
to the relevant taxing authority or other Governmental Authority in accordance
with applicable law.
(b) The relevant Borrower agrees to pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
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(c) The relevant Borrower will indemnify each Lender (or Transferee)
and the Administrative Agent for the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed by the applicable jurisdiction on
amounts payable under this Section 2.20) paid by such Lender (or Transferee) or
the Administrative Agent, as the case may be, and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted by
the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days after the date such Lender (or
Transferee) or the Administrative Agent, as the case may be, makes written
demand therefor.
(d) Whenever any Taxes or Other Taxes are payable by any Borrower,
within 30 days thereafter such Borrower shall send to the Administrative Agent
for its own account or for the account of the relevant Lender, as the case may
be, a certified copy of an official receipt received by such Borrower showing
payment thereof (or other evidence of such payment reasonably satisfactory to
the Administrative Agent).
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.20
shall survive the payment in full of the principal of and interest on all Loans
made hereunder and of all other amounts payable hereunder.
(f) Each Lender (or Transferee) that is not a "United States Person"
as defined in Section 7701(a)(30) of the Code (such Lender (or Transferee), a
"Non-U.S. Person") shall deliver to Viacom and the Administrative Agent (or, in
the case of a participant, to the Lender from which the related participation
shall have been purchased) two copies of either U.S. Internal Revenue Service
Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Person claiming
exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest", a Form W-8BEN, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. Person,
claiming an exemption with respect to payments of "portfolio interest", delivers
a Form W-8BEN, an annual certificate representing that such Non-U.S. Person is
not a "bank" for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of Viacom
and is not a controlled foreign corporation related to Viacom (within the
meaning of Section 864(d)(4) of the Code)), properly completed and duly executed
by such Non-U.S. Person claiming complete exemption from U.S. federal
withholding tax on all payments by any Borrower under this Agreement. Such forms
shall be delivered by each Non-U.S. Person promptly after it becomes a party to
this Agreement (or, in the case of any participant, promptly after the date such
participant purchases the related participation). In addition, each Non-U.S.
Person shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Non-U.S. Person. Each Non-U.S. Person
shall promptly notify Viacom at any time it determines that it is no longer in a
position to provide any previously delivered certificate to Viacom (or any other
form of certification adopted by the U.S. taxing authorities for such purpose).
Unless Viacom and the Administrative Agent (or, in the case of a participant,
the Lender from which the related participation shall have been purchased) have
received forms or other documents satisfactory to them indicating that payments
hereunder are not subject to United States withholding tax, the relevant
Borrower or the Administrative Agent shall withhold taxes from such payments at
the applicable statutory rate in the case of payments
50
of interest to or for any Lender (or Transferee) that is a Non-U.S. Person.
Notwithstanding any other provision of this Section 2.20(f), a Non-U.S. Person
shall not be required to deliver any form pursuant to this Section 2.20(f) that
such Non-U.S. Person is not legally able to deliver by reason of the adoption of
any law, rule or regulation, or any change in any law, rule or regulation or in
the interpretation thereof, in each case occurring after the date such Non-U.S.
Person becomes a Lender (or Transferee).
(g) A Lender that is entitled to an exemption from or reduction of
any non-U.S. withholding tax under the law of the jurisdiction in which a
Borrower is located, or under any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to such Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by such Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that such
Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender's reasonable judgment such completion, execution or
submission would not materially prejudice the legal position of such Lender.
(h) No Borrower shall be required to pay any additional amounts to
any Agent or Lender pursuant to paragraph (a) above (i) if the obligation to pay
such additional amounts would not have arisen but for a failure by such Agent or
Lender to comply with the provisions of paragraph (f) or (g) above or (ii) in
the case of a Transferee, to the extent such additional amounts exceed the
additional amounts that would have been payable had no transfer or assignment to
such Transferee occurred; provided, however, that each Borrower shall be
required to pay those amounts to any Agent or Lender (or Transferee) that it was
required to pay hereunder prior to the failure of such Agent or Lender (or
Transferee) to comply with the provisions of such paragraph (f) or (g).
SECTION 2.21. Termination or Assignment of Commitments Under Certain
Circumstances.
(a) Any Lender (or Transferee) claiming any additional amounts
payable pursuant to Section 2.15 or Section 2.20 and any US-Canadian Lender (or
Transferee) claiming any additional amounts payable pursuant to Section 2.15 or
subsection 3.7 of Annex II shall use reasonable efforts (consistent with legal
and regulatory restrictions) to file any certificate or document requested by
any Borrower or Canadian Borrower or to change the jurisdiction of its
applicable lending office if the making of such a filing or change would avoid
the need for or reduce the amount of any such additional amounts which may
thereafter accrue and would not, in the sole determination of such Lender,
US-Canadian Lender or Transferee, be otherwise disadvantageous to such Lender,
US-Canadian Lender or Transferee.
(b) In the event that (w) any Lender or US-Canadian Lender shall
have delivered a notice or certificate pursuant to Section 2.15, (x) any
Borrower shall be required to make additional payments to any Lender under
Section 2.20, (y) any Canadian Borrower (in respect of C$ Loans) or Borrower (in
respect of US$-Canadian Loans) shall be required to make additional payments to
any US-Canadian Lender under Section 2.20 or (z) any Lender or US-Canadian
Lender (a "Non-Consenting Lender") shall withhold its consent to any amendment
described in
51
clause (i) or (ii) of Section 9.8(b) as to which consents have been obtained
from Lenders and US-Canadian Lenders having Total Facility Percentages
aggregating at least 90%, Viacom shall have the right, at its own expense, upon
notice to such Lender or US-Canadian Lender (or Lenders or US-Canadian Lenders)
and the Administrative Agent, (i) to terminate the Revolving Commitments of such
Lender or terminate the Canadian Commitments of such US-Canadian Lender, as
applicable, (except in the case of clause (z) above), or (ii) to require such
Lender or US-Canadian Lender (or, in the case of clause (z) above, each
Non-Consenting Lender) to transfer and assign without recourse (in accordance
with and subject to the restrictions contained in Section 9.4) all its
interests, rights and obligations under this Agreement to one or more other
financial institutions acceptable to Viacom (unless an Event of Default has
occurred and is continuing) and the Administrative Agent, which approval in each
case shall not be unreasonably withheld, which shall assume such obligations;
provided, that (w) in the case of any replacement of Non-Consenting Lenders,
each assignee shall have consented to the relevant amendment, (x) no such
termination or assignment shall conflict with any law, rule or regulation or
order of any Governmental Authority, (y) (I) the Borrowers or the assignee (or
assignees) shall pay to each affected Lender and US-Canadian Lender, as
applicable, and (II) the Canadian Borrowers or the assignee (or assignees) shall
pay to each affected US-Canadian Lender, as the case may be, in each case, in
immediately available funds on the date of such termination or assignment the
principal of and interest accrued to the date of payment on the Loans made by it
hereunder and all other amounts accrued for its account or owed to it hereunder
and (z) (A) Viacom may not terminate Revolving Commitments representing more
than 10% of the original aggregate Revolving Commitments pursuant to this
paragraph (b) and (B) Viacom may not terminate Canadian Commitments representing
more than 10% of the original aggregate Canadian Commitments pursuant to this
paragraph (b).
SECTION 2.22. Currency Equivalents.
(a) The Administrative Agent shall determine the Dollar equivalent
of each Competitive Bid Loan in a Foreign Currency and each Multi-Currency
Revolving Loan as of the first day of each Interest Period applicable thereto
and, in the case of any such Interest Period of more than three months, at
three-month intervals after the first day thereof. The Administrative Agent
shall promptly notify the relevant Borrower and the Lenders of the Dollar
equivalent so determined by it. Each such determination shall be based on the
Spot Rate (i) (A) for purposes of the initial determination of such Competitive
Bid Loan, on the date of the related Competitive Bid Request and (B) for
purposes of the initial determination of such Multi-Currency Revolving Loan, on
the date of the related Borrowing Request, and (ii) for purposes of subsequent
determinations, on the fourth Business Day prior to the date on which such
Dollar equivalent is to be determined.
(b) The Administrative Agent shall determine the Dollar equivalent
of the Aggregate LC Exposure related to each Letter of Credit issued in a
Foreign Currency as of the date of the issuance thereof, at three-month
intervals after the date of issuance thereof and as of the date of each drawing
thereunder. Each such determination shall be based on the Spot Rate (i) on the
date of the related notice of any proposed issuance of a Letter of Credit
pursuant to Section 2.7(c), in the case of the initial determination of such
Letter of Credit, (ii) on the second Business Day prior to the date as of which
such Dollar equivalent is to be determined, in the case of any subsequent
determination with respect to an outstanding Letter of Credit and (iii) on the
52
second Business Day prior to the related drawing thereunder, in the case of any
determination as of a drawing thereunder.
(c) If after giving effect to any such determination of a Dollar
equivalent with respect to Competitive Bid Loans and Letters of Credit, the
Dollar equivalent thereof exceeds $150,000,000, Viacom shall, or shall cause the
applicable Subsidiary Borrowers to, within five Business Days, (i), in the case
of an excess with respect to Competitive Bid Loans, prepay outstanding
Competitive Bid Loans in Foreign Currencies to eliminate such excess, and (ii)
in the case of an excess with respect to Letters of Credit, cause to be reduced
(or, at the relevant Borrower's option, cash collateralized) outstanding Letters
of Credit in Foreign Currencies to eliminate such excess, or (iii), in each
case, take such other action to the extent necessary to eliminate any such
excess. If any such prepayment occurs on a day which is not the last day of the
then current Interest Period with respect thereto, Viacom shall, or shall cause
the applicable Subsidiary Borrowers to, pay to the Lenders such amounts, if any,
as may be required pursuant to Section 2.16. If after giving effect to any such
determination of a Dollar with respect to Multi-Currency Revolving Loans, the
Dollar equivalent thereof exceeds (A) the Multi-Currency Sublimit for any
currency or (B) the Total Multi-Currency Sublimit, Viacom shall, or shall cause
the relevant Subsidiary Borrowers to, within five Business Days, prepay
outstanding Multi-Currency Revolving Loans so that the Specified Currency
Availability for each currency is greater than or equal to zero and so that the
Total Specified Currency Availability is greater than or equal to zero or take
such other action to the extent necessary to eliminate any such excess.
(d) Notwithstanding the foregoing, if at any time (i) the Commitment
Utilization Percentage is greater than 110%, Viacom shall, or shall cause the
relevant Subsidiary Borrowers to, within five Business Days prepay outstanding
Competitive Bid Loans in Foreign Currencies, prepay outstanding Multi-Currency
Revolving Loans, prepay (or, at the relevant Borrower's option, cash
collateralize) outstanding Letters of Credit in Foreign Currencies or take such
other action to the extent necessary to eliminate any such excess or (ii) the
Dollar equivalent of the outstanding Multi-Currency Revolving Loans is greater
than 110% of (A) the Multi-Currency Sublimit for any currency or (B) the Total
Multi-Currency Sublimit, Viacom shall, or shall cause the relevant Subsidiary
Borrowers to, within five Business Days, prepay outstanding Multi-Currency
Revolving Loans so that the Specified Currency Availability for each currency is
greater than or equal to zero and so that the Total Specified Currency
Availability is greater than or equal to zero or take such other action to the
extent necessary to eliminate any such excess.
(e) If any prepayment occurs pursuant to this Section 2.22 on a day
which is not the last day of the then current Interest Period with respect
thereto, Viacom shall pay to the Lenders such amounts, if any, as may be
required pursuant to Section 2.16.
SECTION 2.23. Judgment Currency.
If, for the purpose of obtaining judgment in any court, it is
necessary to convert a sum due from any Borrower or any Canadian Borrower
hereunder in the currency expressed to be payable herein (the "specified
currency") into another currency, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
that at which in accordance with normal banking procedures the Administrative
Agent could purchase the specified currency with such other currency at the
Administrative Agent's London office (or
53
with respect to C$ Loans, Toronto office) on any Business Day (or with respect
to C$ Loans, Business Day (Canada)) preceding that on which the final judgment
is given. The obligations of such Borrower or Canadian Borrower, as applicable,
in respect of any sum due to any Lender, US-Canadian Lender or the
Administrative Agent hereunder shall, notwithstanding any judgment in a currency
other than the specified currency, be discharged only to the extent that on the
Business Day or Business Day (Canada), as applicable, following receipt by such
Lender, US-Canadian Lender or the Administrative Agent, as the case may be, of
any sum adjudged to be so due in such other currency such Lender, US-Canadian
Lender or the Administrative Agent, as the case may be, may in accordance with
normal banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is less than the
sum originally due to such Lender, US-Canadian Lender or the Administrative
Agent, as the case may be, in the specified currency, such Borrower or Canadian
Borrower, as applicable, agrees, to the fullest extent that it may effectively
do so, as a separate obligation and notwithstanding any such judgment, to
indemnify such Lender, US-Canadian Lender or the Administrative Agent, as the
case may be, against such loss, and if the amount of the specified currency so
purchased exceeds (i) the sum originally due to any Lender, US-Canadian Lender
or the Administrative Agent, as the case may be, in the specified currency and
(ii) any amounts shared with other Lenders or US-Canadian Lenders, as
applicable, as a result of allocations of such excess as a disproportionate
payment to such Lender or US-Canadian Lender as compared to such Lender's Total
Revolving Facility Percentage or US-Canadian Lender's Total Canadian Facility
Percentage, such Lender, US-Canadian Lender or the Administrative Agent, as the
case may be, agrees to remit such excess to such Borrower or Canadian Borrower,
as applicable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Viacom hereby represents and warrants, and each Subsidiary Borrower
by its execution and delivery of a Subsidiary Borrower Request represents and
warrants (to the extent specifically applicable to such Subsidiary Borrower), to
each of the Lenders that:
SECTION 3.1. Corporate Existence. Each of Viacom and each Material
Subsidiary: (a) is a corporation, partnership or other entity duly organized and
validly existing under the laws of the jurisdiction of its organization; (b) has
all requisite corporate or other power, and has all material governmental
licenses, authorizations, consents and approvals, necessary to own its assets
and carry on its business as now being or as proposed to be conducted, except
where the failure to have any of the foregoing would not result in a Material
Adverse Effect; and (c) is qualified to do business in all jurisdictions in
which the nature of the business conducted by it makes such qualification
necessary and where failure so to qualify would result in a Material Adverse
Effect.
SECTION 3.2. Financial Condition. The consolidated balance sheet of
Viacom and its Consolidated Subsidiaries as at December 31, 1999, and the
related consolidated statements of income and cash flows of
54
Viacom and its Consolidated Subsidiaries for the fiscal year ended on such date,
with the opinion thereon of PricewaterhouseCoopers LLC, heretofore furnished to
each of the Lenders, fairly present the consolidated financial condition of
Viacom and its Consolidated Subsidiaries as at such date and the consolidated
results of their operations for the fiscal year ended on such date in accordance
with GAAP. Neither Viacom nor any of its Material Subsidiaries had on such date
any known material contingent liability, except as referred to or reflected or
provided for in the Exchange Act Report or in such balance sheets (or the notes
thereto) as at such date.
SECTION 3.3. Litigation. Except as disclosed to the Lenders in the
Exchange Act Report filed prior to the Closing Date or otherwise disclosed in
writing to the Lenders prior to the Closing Date, there are no legal or arbitral
proceedings, or any proceedings by or before any Governmental Authority, pending
or (to the knowledge of Viacom) threatened against Viacom or any of its Material
Subsidiaries which have resulted in a Material Adverse Effect (it being agreed
that any legal or arbitral proceedings which have been disclosed in the Exchange
Act Report, whether threatened, pending, resulting in a judgment or otherwise,
prior to the time a final judgment for the payment of money shall have been
recorded against Viacom or any Material Subsidiary by any Governmental Authority
having jurisdiction, and the judgment is non-appealable (or the time for appeal
has expired) and all stays of execution have expired or been lifted shall not,
in and of itself, be deemed to result in a Material Adverse Effect). The
"Exchange Act Report" shall mean, collectively, (i) the Annual Report of Viacom
on Form 10-K for the year ended December 31, 1999 and Quarterly Reports on Form
10-Q and Reports on Form 8-K of Viacom filed subsequent to December 31, 1999,
but on or before February 20, 2001, (ii) the Annual Report of CBS Corporation on
Form 10-K for the year ended December 31, 1999 and Quarterly Reports on Form
10-Q and Reports on Form 8-K of Viacom filed subsequent to December 31, 1999,
but on or before February 20, 2001, and (iii) Reports on Form S-4 filed on
October 7, 1999 and November 22, 2000, in each case, as amended or supplemented
on or before February 20, 2001.
SECTION 3.4. No Breach, etc. None of the execution and delivery of
this Agreement, the consummation of the transactions herein contemplated and
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter or By-laws (or other
equivalent organizational documents) of any Borrower, or any applicable law or
regulation, or any order, writ, injunction or decree of any Governmental
Authority, or any material agreement or instrument to which Viacom or any of its
Material Subsidiaries is a party or by which any of them is bound or to which
any of them is subject, or constitute a default under any such agreement or
instrument, or result in the creation or imposition of any Lien upon any of the
revenues or assets of Viacom or any of its Material Subsidiaries pursuant to the
terms of any such agreement or instrument. Neither Viacom nor any of its
Material Subsidiaries is in default under or with respect to any of its material
contractual obligations in any respect which would have a Material Adverse
Effect.
55
SECTION 3.5. Corporate Action. Each Borrower has all necessary
corporate power and authority to execute, deliver and perform its obligations
under this Agreement; the execution and delivery by each Borrower of this
Agreement (or, in the case of each Subsidiary Borrower, the relevant Subsidiary
Borrower Request), and the performance by each Borrower of this Agreement, have
been duly authorized by all necessary corporate action on such Borrower's part;
this Agreement (or, in the case of each Subsidiary Borrower, the relevant
Subsidiary Borrower Request) has been duly and validly executed and delivered by
each Borrower; and this Agreement constitutes a legal, valid and binding
obligation of each Borrower, enforceable in accordance with its terms except as
such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws of general
applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 3.6. Approvals. No authorizations, approvals or consents of,
and no filings or registrations with, any Governmental Authority are necessary
for the execution, delivery or performance by each Borrower of this Agreement or
for the validity or enforceability hereof.
SECTION 3.7. ERISA. Viacom and, to the best of its knowledge, its
ERISA Affiliates have fulfilled their respective obligations under the minimum
funding standards of ERISA and the Code with respect to each Plan and are in
compliance in all material respects with the currently applicable provisions of
ERISA and the Code except where any failure or non-compliance would not result
in a Material Adverse Effect.
SECTION 3.8. Taxes. As of the Closing Date, United States Federal
income tax returns of or including Viacom have been, to the knowledge of Viacom,
examined and closed through the fiscal year of Viacom ended December 31, 1994.
Viacom and its Material Subsidiaries, to the knowledge of Viacom, have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by or in respect of them and have paid or caused
to be paid all taxes shown as due on such returns or pursuant to any assessment
received by Viacom or any of its Material Subsidiaries, except those being
contested and reserved against in accordance with Section 5.2.
SECTION 3.9. Investment Company Act. No Borrower is an "investment
company", or a company "controlled" by an "investment company", subject to
regulation under the Investment Company Act of 1940, as amended.
56
SECTION 3.10. Environmental. Except as in the aggregate would not
have a Material Adverse Effect, neither Viacom nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance or liability
regarding environmental matters or compliance with Environmental Laws with
regard to any of its or its Subsidiaries' Properties or business, nor does
Viacom have any knowledge that any notice will be received or is being
threatened.
SECTION 3.11. Material Subsidiaries. The list of Material
Subsidiaries set forth in the most recently issued Form 10-K of Viacom is
complete and correct in all material respects as of the date of the issuance of
such Form 10-K.
ARTICLE IV
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 4.1. Effectiveness. The effectiveness of this Agreement is
subject to the satisfaction of the following conditions:
(a) Credit Agreement. The Administrative Agent shall have received
this Agreement, executed and delivered by a duly authorized officer of Viacom
and Viacom International.
(b) 364-Day Credit Agreement. All conditions to effectiveness set
forth in Section 4.1 of the 364-Day Credit Agreement shall have been satisfied.
(c) Closing Certificate. The Administrative Agent shall have
received a Closing Certificate, substantially in the form of Exhibit E, of
Viacom and Viacom International, with appropriate insertions and attachments.
(d) Termination of Existing Credit Agreements. The Existing Credit
Agreements shall have been paid in full and all obligations thereunder shall
have been terminated.
(e) Opinion of Counsel. The Administrative Agent shall have received
an opinion of the general counsel of Viacom and Viacom International in form and
substance satisfactory to the Administrative Agent and customary for
transactions of this type.
SECTION 4.2. Initial Loans to Subsidiary Borrowers. The obligation
of each Lender to make its initial Loan to a particular Subsidiary Borrower, if
designated as such after the Closing Date, is subject to the satisfaction of the
conditions that (a) Viacom shall have delivered to the Administrative Agent a
Subsidiary Borrower Designation for such Subsidiary Borrower and (b) such
Subsidiary Borrower shall
57
have furnished to the Administrative Agent (i) a Subsidiary Borrower Request,
(ii) a Closing Certificate of such Subsidiary Borrower, with appropriate
insertions and attachments and (iii) one or more executed legal opinions with
respect to such Subsidiary Borrower, in form and substance reasonably
satisfactory to the Administrative Agent. Viacom may from time to time deliver a
subsequent Subsidiary Borrower Designation with respect to any Subsidiary
Borrower, countersigned by such Subsidiary Borrower, for the purpose of
terminating such Subsidiary Borrower's designation as such, so long as, on the
effective date of such termination, all Subsidiary Borrower Obligations in
respect of such Subsidiary Borrower shall have been paid in full. In addition,
if on any date a Subsidiary Borrower shall cease to be a Subsidiary, all
Subsidiary Borrower Obligations in respect of such Subsidiary Borrower shall
automatically become due and payable on such date and no further Loans may be
borrowed by such Subsidiary Borrower hereunder.
SECTION 4.3. All Credit Events. The obligation of each Lender to
make each Loan, and the obligation of each Issuing Lender to issue each Letter
of Credit, are subject to the satisfaction of the following conditions:
(a) The Administrative Agent shall have received a request for, or
notice of, such Credit Event if and as required by Section 2.3, 2.4, 2.6 or 2.7
or subsection 2.2 or 2.3 of Annex II, as applicable;
(b) Each of the representations and warranties made by Viacom and,
in the case of a borrowing by a Subsidiary Borrower, by such Subsidiary
Borrower, in Sections 3.1, 3.2, 3.4, 3.5 and 3.6 shall be true and correct in
all material respects on and as of the date of such Credit Event with the same
effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date in which case
such representations and warranties shall be true and correct in all material
respects as of such earlier date;
(c) At the time of and immediately after giving effect to such
Credit Event no Default or Event of Default shall have occurred and be
continuing; and
(d) After giving effect to such Credit Event, (A) with respect to
Revolving Credit Loans (i) the Outstanding Revolving Extensions of Credit of
each Lender shall not exceed such Lender's Commitment then in effect and (ii)
the Total Revolving Facility Exposure shall not exceed the Total Revolving
Commitment then in effect, (B) with respect to C$ Loans and US$-Canadian Loans
(i) the Outstanding Canadian Extensions of Credit of each Lender shall not
exceed such Lender's Canadian Commitment then in effect and (ii) the Total
Canadian Facility Exposure shall not exceed the Total Canadian Commitment then
in effect, (C) with respect to Multi-Currency Revolving Loans and C$ Loans, (i)
the outstanding Multi-Currency Revolving Loans in a particular Multi-Currency or
C$ Loans, as applicable, shall not exceed the Multi-Currency Sublimit for such
currency and (ii) the aggregate outstanding Multi-Currency Revolving Loans shall
not exceed the Total Multi-Currency Sublimit.
58
Each Credit Event shall be deemed to constitute a representation and warranty by
Viacom on the date of such Credit Event as to the matters specified in
paragraphs (b) and (c) of this Section 4.3.
ARTICLE V
COVENANTS
Viacom covenants and agrees with each Lender that, as long as the
Commitments shall be in effect or the principal of or interest on any Loan shall
be unpaid, or there shall be any Aggregate LC Exposure, unless the Required
Lenders shall otherwise consent in writing:
SECTION 5.1. Financial Statements. Viacom shall deliver to each of
the Lenders:
(a) within 60 days after the end of each of the first three
quarterly fiscal periods of each fiscal year of Viacom, consolidated statements
of income and cash flows of Viacom and its Consolidated Subsidiaries for such
period and for the period from the beginning of the respective fiscal year to
the end of such period, and the related consolidated balance sheet as at the end
of such period, setting forth in each case in comparative form the corresponding
consolidated figures for the corresponding period in the preceding fiscal year,
accompanied by a certificate of a Financial Officer of Viacom which certificate
shall state that such financial statements fairly present the consolidated
financial condition and results of operations of Viacom and its Consolidated
Subsidiaries in accordance with GAAP as at the end of, and for, such period,
subject to normal year-end audit adjustments; provided, that the requirement
herein for the furnishing of such quarterly financial statements may be
fulfilled by providing to the Lenders the report of Viacom to the SEC on Form
10-Q for the applicable quarterly period, accompanied by the officer's
certificate described in the last sentence of this Section 5.1;
(b) within 120 days after the end of each fiscal year of Viacom,
consolidated statements of income and cash flows of Viacom and its Consolidated
Subsidiaries for such year and the related consolidated balance sheet as at the
end of such year, setting forth in comparative form the corresponding
consolidated figures for the preceding fiscal year, and accompanied by an
opinion thereon (unqualified as to the scope of the audit) of independent
certified public accountants of recognized national standing, which opinion
shall state that such consolidated financial statements fairly present the
consolidated financial condition and results of operations of Viacom and its
Consolidated Subsidiaries as at the end of, and for, such fiscal year; provided,
that the requirement herein for the furnishing of annual financial statements
may be fulfilled by providing to the Lenders the report of Viacom to the SEC on
Form 10-K for the applicable fiscal year;
(c) promptly upon their becoming publicly available, copies of all
registration statements and regular periodic reports (including without
limitation any and all reports on Form 8-K), if any, which Viacom or any of its
Subsidiaries shall have filed with the SEC or any national securities exchange;
59
(d) promptly upon the mailing thereof to the shareholders of Viacom
generally, copies of all financial statements, reports and proxy statements so
mailed;
(e) within 30 days after a Responsible Officer of Viacom knows or
has reason to believe that any of the events or conditions specified below with
respect to any Plan or Multiemployer Plan have occurred or exist which would
reasonably be expected to result in a Material Adverse Effect, a statement
signed by a senior financial officer of Viacom setting forth details respecting
such event or condition and the action, if any, which Viacom or its ERISA
Affiliate proposes to take with respect thereto (and a copy of any report or
notice required to be filed with or given to PBGC by Viacom or an ERISA
Affiliate with respect to such event or condition):
(i) any reportable event, as defined in Section 4043(b) of
ERISA and the regulations issued thereunder, with respect to a Plan,
as to which PBGC has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of the
occurrence of such event; provided, that a failure to meet the
minimum funding standard of Section 412 of the Code or Section 302
of ERISA shall be a reportable event regardless of the issuance of
any waiver in accordance with Section 412(d) of the Code;
(ii) the filing under Section 4041 of ERISA of a notice of
intent to terminate any Plan or the termination of any Plan;
(iii) the institution by PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by Viacom or any
ERISA Affiliate of a notice from a Multiemployer Plan that such
action has been taken by PBGC with respect to such Multiemployer
Plan;
(iv) the complete or partial withdrawal by Viacom or any ERISA
Affiliate under Section 4201 or 4204 of ERISA from a Multiemployer
Plan, or the receipt by Viacom or any ERISA Affiliate of notice from
a Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA or that it intends to
terminate or has terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against Viacom or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within 30
days; and
(vi) a failure to make a required installment or other payment
with respect to a Plan (within the meaning of Section 412(n) of the
Code), in which case the notice required hereunder shall be provided
within 10 days after the due date for filing notice of such failure
with the PBGC;
(f) promptly after a Responsible Officer of Viacom knows or has
reason to believe that any Default or Event of Default has occurred, a notice of
such Default or Event of
60
Default describing it in reasonable detail and, together with such notice or as
soon thereafter as possible, a description of the action that Viacom has taken
and proposes to take with respect thereto;
(g) promptly after a Responsible Officer of Viacom knows that any
change has occurred in Viacom's Debt Rating by either Rating Agency, a notice
describing such change; and
(h) promptly from time to time such other information regarding the
financial condition, operations or business of Viacom or any of its Subsidiaries
(including, without limitation, any Plan or Multiemployer Plan and any reports
or other information required to be filed under ERISA) as any Lender through the
Administrative Agent may reasonably request.
Viacom will furnish to the Administrative Agent and each Lender, at the time it
furnishes each set of financial statements pursuant to paragraph (a) or (b)
above, a certificate (which may be a copy in the case of each Lender) of a
Financial Officer of Viacom (a "Compliance Certificate") (i) to the effect that
no Default or Event of Default has occurred and is continuing (or, if any
Default or Event of Default has occurred and is continuing, describing it in
reasonable detail and describing the action that Viacom has taken and proposes
to take with respect thereto), and (ii) setting forth in reasonable detail the
computations (including any pro forma calculations as described in Section
1.2(c)) necessary to determine whether Viacom is in compliance with the
Financial Covenant as of the end of the respective quarterly fiscal period or
fiscal year. Each Lender hereby agrees that Viacom may, in its discretion,
provide any notice, report or other information to be provided pursuant to this
Section 5.1 to such Lender by (i) electronic mail to the electronic mail address
provided by such Lender and/or (ii) through access to a web site, including,
without limitation, ▇▇▇.▇▇▇.▇▇▇.
SECTION 5.2. Corporate Existence, Etc. Viacom will, and will cause
each of its Material Subsidiaries to, preserve and maintain its legal existence
and all of its material rights, privileges and franchises (provided that (a)
nothing in this Section 5.2 shall prohibit any transaction expressly permitted
under Section 5.4, (b) the corporate existence of any Subsidiary (other than a
Subsidiary Borrower or Viacom International) may be terminated if, in the good
faith judgment of the board of directors or the chief financial officer of
Viacom, such termination is in the best interests of Viacom and such termination
would not have a Material Adverse Effect), and (c)Viacom or such Material
Subsidiary shall not be required to preserve or maintain any such right,
privilege or franchise if the Board of Directors of Viacom or such Material
Subsidiary, as the case may be, shall determine that the preservation or
maintenance thereof is no longer desirable in the conduct of the business of
Viacom or such Material Subsidiary, as the case may be); comply with the
requirements of all applicable laws, rules, regulations and orders of
Governmental Authorities (including, without limitation, all Environmental Laws)
and with all contractual obligations if failure to comply with such requirements
or obligations would reasonably be expected to result in a Material Adverse
Effect; pay and discharge all material taxes, assessments, governmental charges,
levies or other obligations of whatever nature imposed on it or on its income or
profits or on any of its Property prior to the date on which penalties attach
thereto, except for any such tax, assessment, charge, levy or other obligation
the payment of which is being contested in good
61
faith and by proper proceedings and against which adequate reserves are being
maintained; maintain all its Property used or useful in its business in good
working order and condition, ordinary wear and tear excepted, all as in the
judgment of Viacom or such Material Subsidiary may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times (provided that Viacom or such Material Subsidiary shall
not be required to maintain any such Property if the failure to maintain any
such Property is, in the judgment of Viacom or such Material Subsidiary,
desirable in the conduct of the business of Viacom or such Material Subsidiary);
keep proper books of records and accounts in which entries that are full, true
and correct in all material respects shall be made in conformity with GAAP; and
permit representatives of any Lender, during normal business hours upon
reasonable advance notice, to inspect any of its books and records and to
discuss its business and affairs with its Financial Officers or their designees,
all to the extent reasonably requested by such Lender.
SECTION 5.3. Insurance. Viacom will, and will cause each of its
Material Subsidiaries to, keep insured by financially sound and reputable
insurers all Property of a character usually insured by corporations engaged in
the same or similar business and similarly situated against loss or damage of
the kinds and in the amounts consistent with prudent business practice and carry
such other insurance as is consistent with prudent business practice (it being
understood that self-insurance shall be permitted to the extent consistent with
prudent business practice).
SECTION 5.4. Prohibition of Fundamental Changes. Viacom will not,
and will not permit any of its Material Subsidiaries to (i) enter into any
transaction of merger, consolidation, liquidation or dissolution or (ii) Dispose
of, in one transaction or a series of related transactions, all or a substantial
part of the consolidated assets of Viacom and its Subsidiaries taken as a whole,
whether now owned or hereafter acquired (excluding (x) financings by way of
sales of receivables or inventory, (y) inventory or other Property Disposed of
in the ordinary course of business and (z) obsolete or worn-out Property, tools
or equipments no longer used or useful in its business). Notwithstanding the
foregoing provisions of this Section 5.4:
(a) Viacom may consummate the Blockbuster Event;
(b) any Subsidiary of Viacom may be merged or consolidated with or
into: (i) Viacom if Viacom shall be the continuing or surviving corporation or
(ii) any other such Subsidiary; provided, that (x) if any such transaction shall
be between a Subsidiary and a Wholly Owned Subsidiary, such Wholly Owned
Subsidiary shall be the continuing or surviving corporation and (y) if any such
transaction shall be between a Subsidiary and a Subsidiary Borrower, the
continuing or surviving corporation shall be a Subsidiary Borrower;
(c) any Subsidiary of Viacom may distribute, dividend or Dispose of
any of or all its Property (upon voluntary liquidation or otherwise) to Viacom
or a Wholly Owned Subsidiary of Viacom;
62
(d) Viacom may merge or consolidate with or into any other Person
(including, without limitation, Viacom International) if (i) either (x) Viacom
is the continuing or surviving corporation or (y) the corporation formed by such
consolidation or into which Viacom is merged shall be a corporation organized
under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume the obligations of Viacom
hereunder pursuant to a written agreement and shall have delivered to the
Administrative Agent such agreement and a certificate of a Responsible Officer
and an opinion of counsel to the effect that such merger or consolidation
complies with this Section 5.4(c), and (ii) after giving effect thereto and to
any repayment of Loans to be made upon consummation thereof (it being expressly
understood that no repayment of Loans is required solely by virtue thereof), no
Default or Event of Default shall have occurred and be continuing;
(e) any Subsidiary of Viacom may merge or consolidate with or into
any other Person if, after giving effect thereto and to any repayment of Loans
to be made upon the consummation thereof (it being expressly understood that,
except as otherwise expressly provided in Section 4.2 with respect to Subsidiary
Borrowers, no repayment of Loans is required solely by virtue thereof), no
Default or Event of Default shall have occurred and be continuing; and
(f) Viacom or any Subsidiary of Viacom may Dispose of its Property
if, after giving effect thereto and to any repayment of Loans to be made upon
the consummation thereof (it being expressly understood that, except as
otherwise expressly provided in Section 4.2 with respect to Subsidiary
Borrowers, no repayment of Loans is required solely by virtue thereof), no
Default or Event of Default shall have occurred and be continuing.
SECTION 5.5. Limitation on Liens. Viacom 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:
(a) purchase money Liens or purchase money security interests upon
or in any Property acquired or held by Viacom or any Subsidiary of Viacom 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;
(b) Liens existing on Property at the time of its acquisition (other
than any such Lien created in contemplation of such acquisition);
(c) Liens on Property of Persons which become or became Subsidiaries
securing Indebtedness existing, with respect to any such Person, on the date
such Person becomes or became a Subsidiary (other than any such Lien created in
contemplation of such Person becoming a Subsidiary);
63
(d) Liens securing Indebtedness incurred by Viacom or any Subsidiary
of Viacom; provided, however, that the aggregate principal amount of
Indebtedness referred to in this clause (d) secured by Liens shall not exceed
$30,000,000 at any time outstanding; and
(e) any Lien securing the renewal, extension or refunding of any
Indebtedness secured by any Lien permitted by clause (a), (b), (c) or (d) above
that does not extend to Indebtedness other than that which is being renewed,
extended or refunded.
SECTION 5.6. Limitation on Subsidiary Indebtedness. Viacom will not
permit any of its Subsidiaries to create, incur, assume or suffer to exist any
Indebtedness (which includes, for the purposes of this Section 5.6, any
preferred stock), except:
(a) Indebtedness of any Person which is acquired by Viacom or any of
its Subsidiaries after the Closing Date, which Indebtedness was outstanding
prior to the date of acquisition of such Person and was not created in
anticipation thereof;
(b) any Indebtedness owing by Viacom or any of its Subsidiaries to
Viacom or any of its Subsidiaries (including any intercompany Indebtedness
created by the declaration of a note payable dividend by any Subsidiary to
Viacom or any of its other Subsidiaries);
(c) Indebtedness (including backed-up commercial paper) of any
Subsidiary Borrower or Viacom International under this Agreement;
(d) Indebtedness (including backed-up commercial paper) existing at
any time under the 364-Day Credit Agreement or under the Existing Infinity
Credit Agreement;
(e) Indebtedness outstanding on the Closing Date, with such
Indebtedness outstanding as of September 30, 2000 being set forth on Schedule
5.6;
(f) any replacement, renewal, refinancing or extension of any
Indebtedness permitted by Section 5.6(a) through (d) or set forth on Schedule
5.6 that does not exceed the aggregate principal amount (plus associated fees
and expenses) of the Indebtedness being replaced, renewed, refinanced or
extended (except that accrued and unpaid interest may be part of any
refinancing); and
(g) Indebtedness incurred after the Closing Date; provided, that
after giving effect thereto the aggregate principal amount of Indebtedness
incurred pursuant to this paragraph (g) that is outstanding on such date (it
being understood that, for the purposes of this paragraph (g), the term
"Indebtedness" does not include Indebtedness excepted by any of clauses (a)
through (f) inclusive) does not exceed the greater of (i) an aggregate principal
amount in excess of 5% of Consolidated Tangible Assets (measured by reference to
the then latest financial statements delivered pursuant to Section 5.1(a) or
(b), as applicable) and (ii) $800,000,000 at any time.
64
SECTION 5.7. Consolidated Coverage Ratio. Viacom will not permit the
Consolidated Coverage Ratio for any period of four consecutive fiscal quarters
to be less than 3.00 to 1.00.
SECTION 5.8. Use of Proceeds. On and after the Closing Date, each
Borrower will use the proceeds of the Loans and will use the Letters of Credit
hereunder solely for general corporate purposes, including, without limitation,
acquisitions and commercial paper backup (in each case in compliance with all
applicable legal and regulatory requirements, including, without limitation,
Regulation U and the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as amended, and the regulations thereunder); provided,
that neither any Agent, nor any Lender shall have any responsibility as to the
use of any of such proceeds.
SECTION 5.9. Transactions with Affiliates. Excepting transactions
directly or indirectly entered into pursuant to any agreement entered into prior
to the Closing Date, or transactions contemplated by any agreement directly or
indirectly entered into prior to the Closing Date, Viacom will not, and will not
permit any of its Material Subsidiaries to, directly or indirectly enter into
any material transaction with any Affiliate of Viacom except on terms at least
as favorable to Viacom or such Subsidiary as it could obtain on an arm's-length
basis.
ARTICLE VI
EVENTS OF DEFAULT.
In case of the happening of any of the following events ("Events of
Default"):
(a) (i) any Borrower shall default in the payment when due of any
principal of any Loan or (ii) any Borrower shall default in the payment when due
of any interest on any Loan, any reimbursement obligation in respect of any LC
Disbursement, any Fee or any other amount payable by it hereunder and, in the
case of this clause (ii), such default shall continue unremedied for a period of
five Business Days;
(b) any representation, warranty or certification made or deemed
made herein (or in any modification or supplement hereto) by any Borrower, or
any certificate furnished to any Lender or the Administrative Agent pursuant to
the provisions hereof, shall prove to have been false or misleading in any
material respect as of the time made, deemed made or furnished;
(c) (i) Viacom shall default in the performance of any of its
obligations under Sections 5.7 or 5.8, (ii) Viacom shall default in the
performance of any of its obligations under Section 5.4 and, in the case of this
clause (ii), such default shall continue unremedied for a period of 5 days after
notice thereof to Viacom by the Administrative Agent or the Required Lenders
(through the Administrative Agent) or (iii) Viacom shall default in the
performance of any of its other obligations under this Agreement and, in the
case of this clause (iii), such default shall
65
continue unremedied for a period of 15 days after notice thereof to Viacom by
the Administrative Agent or the Required Lenders (through the Administrative
Agent);
(d) Viacom or any of its Subsidiaries shall (i) fail to pay at final
maturity any Indebtedness in an aggregate amount in excess of $250,000,000, or
(ii) fail to make any payment (whether of principal, interest or otherwise),
regardless of amount, due in respect of, or fail to observe or perform any other
term, covenant, condition or agreement contained in any agreement or instrument
evidencing or governing, any such Indebtedness, in excess of $250,000,000 if the
effect of any failure referred to in this clause (ii) has caused such
Indebtedness to become due prior to its stated maturity (it being agreed that
for purposes of this paragraph (d) only, the term "Indebtedness" shall include
obligations under any interest rate protection agreement, foreign currency
exchange agreement or other interest or exchange rate hedging agreement and that
the amount of any Person's obligations under any such agreement shall be the net
amount that such Person could be required to pay as a result of a termination
thereof by reason of a default thereunder);
(e) Viacom or any of its Material Subsidiaries shall admit in
writing its inability, or be generally unable, to pay its debts as such debts
become due;
(f) Viacom or any of its Material Subsidiaries shall (i) apply for
or consent to the appointment of, or the taking of possession by, a receiver,
trustee or liquidator of itself or of all or a substantial part of its Property,
(ii) make a general assignment for the benefit of its creditors, (iii) commence
a voluntary case under the Bankruptcy Code (as now or hereafter in effect), (iv)
file a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
readjustment of debts, (v) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code, or (vi) take any corporate action
for the purpose of effecting any of the foregoing;
(g) a proceeding or a case shall be commenced, without the
application or consent of Viacom or any of its Material Subsidiaries, in any
court of competent jurisdiction, seeking (i) its liquidation, reorganization,
dissolution or winding-up, or the composition or readjustment of its debts, (ii)
the appointment of a trustee, receiver, custodian, liquidator or the like of
Viacom or such Material Subsidiary or of all or any substantial part of its
assets or (iii) similar relief in respect of Viacom or such Material Subsidiary
under any law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in effect, for a period of
60 or more days; or an order for relief against Viacom or such Material
Subsidiary shall be entered in an involuntary case under the Bankruptcy Code;
(h) a final judgment or judgments for the payment of money in excess
of $250,000,000 in the aggregate shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against Viacom
and/or any of its Material Subsidiaries and the same shall not be paid or
discharged (or provision shall not be made for such discharge), or a stay of
execution thereof shall not be procured, within 60 days from the date of the
date of entry thereof and Viacom or the relevant Material Subsidiary shall not,
within said period of 60 days,
66
or such longer period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during such
appeal;
(i) an event or condition specified in Section 5.1(e) shall occur or
exist with respect to any Plan or Multiemployer Plan and, as a result of such
event or condition, together with all other such events or conditions, Viacom or
any ERISA Affiliate shall incur or shall be reasonably likely to incur a
liability to a Plan, a Multiemployer Plan or PBGC (or any combination of the
foregoing) which would constitute a Material Adverse Effect; or
(j) The guarantee (i) by Viacom contained in Section 8.1 shall
cease, for any reason, to be in full force and effect or Viacom shall so assert
or (ii) by Viacom International contained in Section 8.2 shall cease, for any
reason except pursuant to Section 8.2(g), to be in full force and effect or
Viacom International shall so assert;
then and in every such event (other than an event with respect to Viacom
described in paragraph (f) or (g) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to Viacom, take any or all of the
following actions, at the same or different times: (I) terminate forthwith the
Commitments, (II) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of each Borrower accrued hereunder, shall
become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by each
Borrower, anything contained herein to the contrary notwithstanding, and (III)
require that Viacom deposit cash with the Administrative Agent, in an amount
equal to the Aggregate LC Exposure, as collateral security for the repayment of
any future LC Disbursements; and in any event with respect to any Borrower
described in paragraph (f) or (g) above, (A) if such Borrower is Viacom, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of each Borrower accrued hereunder, shall
automatically become due and payable and Viacom shall be required to deposit
cash with the Administrative Agent, in an amount equal to the Aggregate LC
Exposure, as collateral security for the repayment of any future drawings under
the Letters of Credit and (B) if such Borrower is a Subsidiary Borrower, the
principal of the Loans made to such Subsidiary Borrower then outstanding,
together with accrued interest thereon and all other liabilities of such
Subsidiary Borrower accrued hereunder, shall automatically become due and
payable and such Subsidiary Borrower shall be required to deposit cash with the
Administrative Agent, in an amount equal to the outstanding Letters of Credit
issued to such Subsidiary Borrower, as collateral security for the repayment of
any future drawings under the Letters of Credit, in each case without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by each Borrower, anything contained herein to the
contrary notwithstanding.
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ARTICLE VII
THE AGENTS
In order to expedite the transactions contemplated by this
Agreement, each Agent is hereby appointed to act as Agent on behalf of the
Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are specifically delegated to the Administrative Agent
by the terms and provisions hereof, together with such actions and powers as are
reasonably incidental thereto. Each of the US-Canadian Lenders hereby
irrevocably authorizes the Canadian Administrative Agent to take such actions on
its behalf and to exercise such powers as are specifically delegated to the
Canadian Administrative Agent by the terms and provisions hereof, together with
such actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders and the Issuing Lenders,
without hereby limiting any implied authority, (a) to receive on behalf of the
Lenders all payments of principal of and interest on the Loans (excepting C$
Loans) and the LC Disbursements and all other amounts due to the Lenders and
Issuing Lenders (excepting with respect to the US-Canadian Lenders, any Fees or
other fees payable under this Agreement) hereunder, and promptly to distribute
to each Lender and Issuing Lender its proper share of each payment so received;
(b) to give notice on behalf of each of the Lenders to the Borrowers of any
Event of Default specified in this Agreement of which the Administrative Agent
has actual knowledge acquired in connection with its agency hereunder; and (c)
to distribute to each Lender and Issuing Lender copies of all notices, financial
statements and other materials delivered by any Borrower pursuant to this
Agreement as received by the Administrative Agent. The Canadian Administrative
Agent is hereby expressly authorized by the US-Canadian Lenders, without hereby
limiting any implied authority, (a) to receive on behalf of the US-Canadian
Lenders all payments of principal of and interest on the C$ Loans and all other
amounts due to the US-Canadian Lenders hereunder (except in respect of their
US$-Canadian Loans), and promptly to distribute to each US-Canadian Lender its
proper share of each payment so received; (b) to give notice on behalf of each
of the US-Canadian Lenders to the Administrative Agent of any Event of Default
specified in this Agreement of which the Canadian Administrative Agent has
actual knowledge acquired in connection with its agency hereunder; and (c) to
distribute to each US-Canadian Lender and the Administrative Agent copies of all
notices, financial statements and other materials delivered by any Canadian
Borrower pursuant to this Agreement as received by the Canadian Administrative
Agent.
Neither any Agent nor any of its directors, officers, employees or
agents shall be liable as such for any action taken or omitted by any of them
except for its or his own gross negligence or willful misconduct, or be
responsible for any statement, warranty or representation herein or the contents
of any document delivered in connection herewith, or be required to ascertain or
to make any inquiry concerning the performance or observance by any Borrower of
any of the terms, conditions, covenants or agreements contained in this
Agreement. The Agents shall not be responsible to the Lenders for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement or other instruments or agreements. The Administrative Agent shall in
all cases be fully protected in acting, or refraining from acting, in
68
accordance with written instructions signed by the Required Lenders (or, when
expressly required hereby, all the Lenders) and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders and the Issuing Lenders.
The Administrative Agent and the Canadian Administrative Agent shall, in the
absence of knowledge to the contrary, be entitled to rely on any instrument or
document believed by it in good faith to be genuine and correct and to have been
signed or sent by the proper Person or Persons. Neither the Agents nor any of
their directors, officers, employees or agents shall have any responsibility to
any Borrower on account of the failure of or delay in performance or breach by
any Lender or Issuing Lender of any of its obligations hereunder or to any
Lender or Issuing Lender on account of the failure of or delay in performance or
breach by any other Agent, any other Lender or Issuing Lender or any Borrower of
any of their respective obligations hereunder or in connection herewith. The
Administrative Agent and the Canadian Administrative Agent may execute any and
all duties hereunder by or through agents or employees and shall be entitled to
rely upon the advice of legal counsel selected by the Administrative Agent with
respect to all matters arising hereunder and shall not be liable for any action
taken or suffered in good faith by it in accordance with the advice of such
counsel.
The Lenders and the Issuing Lenders hereby acknowledge that neither
the Administrative Agent nor the Canadian Administrative Agent shall be under
any duty to take any discretionary action permitted to be taken by it pursuant
to the provisions of this Agreement unless it shall be requested in writing to
do so by (i) with respect to the Administrative Agent, the Required Lenders or
the Required Revolving Lenders, as applicable, and (ii) with respect to the
Canadian Administrative Agent, the Required Canadian Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying the Canadian Administrative Agent, the Lenders, the
Issuing Lenders and the Borrowers. Upon any such resignation, the Required
Lenders shall have the right to appoint from the Lenders a successor. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint from the Lenders a successor Administrative Agent
which shall be a bank with an office in New York, New York, having a combined
capital and surplus of at least $500,000,000 or an affiliate of any such bank,
which successor shall be acceptable to Viacom (such acceptance not to be
unreasonably withheld). Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor bank, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.5 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
Subject to the appointment and acceptance of a successor Canadian
Administrative Agent as provided below, the Canadian Administrative Agent may
resign at any time by notifying the Administrative Agent, the US-Canadian
Lenders and the Borrowers. Upon any such resignation, the Required Canadian
Lenders shall have the right to appoint from the US-Canadian Lenders a
successor. If no successor shall have been so appointed by the Required
69
Canadian Lenders and shall have accepted such appointment within 30 days after
the retiring Canadian Administrative Agent gives notice of its resignation, then
the retiring Canadian Administrative Agent may, on behalf of the US-Canadian
Lenders, appoint from the US-Canadian Lenders a successor Canadian
Administrative Agent which shall be a bank with an office in New York, New York
and in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, having a combined capital and surplus of at least
$500,000,000 or an affiliate of any such bank, which successor shall be
acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the
acceptance of any appointment as Canadian Administrative Agent hereunder by a
successor bank, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Canadian Administrative
Agent and the retiring Canadian Administrative Agent shall be discharged from
its duties and obligations hereunder. After the Canadian Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.5 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Canadian Administrative Agent.
With respect to the Loans made by them and their LC Exposure
hereunder, the Agents in their individual capacity and not as Agents shall have
the same rights and powers as any other Lender and may exercise the same as
though they were not Agents, and the Agents and their affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrowers or any of their respective Subsidiaries or any Affiliate thereof
as if they were not Agents.
Each Lender and Issuing Lender agrees (i) to reimburse the
Administrative Agent and the Canadian Administrative Agent in the amount of its
pro rata share (based on its Total Facility Percentage or, after the date on
which the Loans shall have been paid in full, based on its Total Facility
Percentage immediately prior to such date) of any reasonable, out-of-pocket
expenses incurred for the benefit of the Lenders or the Issuing Lenders by the
Administrative Agent or the Canadian Administrative Agent, as applicable,
including reasonable counsel fees and compensation of agents and employees paid
for services rendered on behalf of the Lenders or the Issuing Lenders, which
shall not have been reimbursed by or on behalf of any Borrower and (ii) to
indemnify and hold harmless the Administrative Agent and the Canadian
Administrative Agent and any of their respective directors, officers, employees
or agents, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against it in its capacity as
Administrative Agent or Canadian Administrative Agent, as applicable, in any way
relating to or arising out of this Agreement or any action taken or omitted by
it under this Agreement, to the extent the same shall not have been reimbursed
by or on behalf of Viacom; provided, that no Lender or Issuing Lender shall be
liable to the Administrative Agent, the Canadian Administrative Agent or any
such director, officer, employee or agent for any portion of such liabilities,
taxes, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent, the Canadian Administrative Agent or any
of their respective directors, officers, employees or agents, as applicable.
Each Lender and Issuing Lender acknowledges that it has,
independently and without reliance upon the Agents or any other Lender or
Issuing Lender and based on such
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documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender and Issuing
Lender also acknowledges that it will, independently and without reliance upon
any Agent or any other Lender or Issuing Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
Neither the Syndication Agent, the Co-Documentation Agents, the
Joint Lead Arrangers nor any managing agent shall have any duties or
responsibilities hereunder in its capacity as such.
ARTICLE VIII
GUARANTEES
SECTION 8.1. Viacom Guarantee. (a) Guarantee. In order to induce the
Administrative Agent and the Lenders to become bound by this Agreement and to
make the Loans hereunder to the Subsidiary Borrowers, and in consideration
thereof, Viacom hereby unconditionally and irrevocably guarantees, as primary
obligor and not merely as surety, to the Administrative Agent, for the ratable
benefit of the Lenders, the prompt and complete payment and performance by each
Subsidiary Borrower when due (whether at stated maturity, by acceleration or
otherwise) of the Subsidiary Borrower Obligations, and Viacom further agrees to
pay any and all expenses (including, without limitation, all reasonable fees,
charges and disbursements of counsel) which may be paid or incurred by the
Administrative Agent or by the Lenders in enforcing, or obtaining advice of
counsel in respect of, any of their rights under the guarantee contained in this
Section 8.1(a). The guarantee contained in this Section 8.1(a), subject to
Section 8.1(e), shall remain in full force and effect until the Subsidiary
Borrower Obligations are paid in full and the Commitments are terminated,
notwithstanding that from time to time prior thereto any Subsidiary Borrower may
be free from any Subsidiary Borrower Obligations. Viacom agrees that whenever,
at any time, or from time to time, it shall make any payment to the
Administrative Agent or any Lender on account of its liability under this
Section 8.1, it will notify the Administrative Agent and such Lender in writing
that such payment is made under the guarantee contained in this Section 8.1 for
such purpose. No payment or payments made by any Subsidiary Borrower or any
other Person or received or collected by the Administrative Agent or any Lender
from any Subsidiary Borrower or any other Person by virtue of any action or
proceeding or any setoff or appropriation or application, at any time or from
time to time, in reduction of or in payment of the Subsidiary Borrower
Obligations shall be deemed to modify, reduce, release or otherwise affect the
liability of Viacom under this Section 8.1 which, notwithstanding any such
payment or payments, shall remain liable for the unpaid and outstanding
Subsidiary Borrower Obligations until, subject to Section 8.1(e), the Subsidiary
Borrower Obligations are paid in full and the Commitments are terminated.
Notwithstanding any other provision herein, the maximum liability of Viacom
under this Section 8.1 shall in no event exceed the amount which can be
guaranteed by Viacom under applicable law.
71
(b) No Subrogation, etc. Notwithstanding any payment or payments
made by Viacom hereunder, or any set-off or application of funds of Viacom by
the Administrative Agent or any Lender, Viacom shall not be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against any Subsidiary Borrower or against any collateral security or guarantee
or right of offset held by the Administrative Agent or any Lender for the
payment of the Subsidiary Borrower Obligations, nor shall Viacom seek or be
entitled to seek any contribution, reimbursement, exoneration or indemnity from
or against any Subsidiary Borrower in respect of payments made by Viacom
hereunder, until all amounts owing to the Administrative Agent and the Lenders
by the Subsidiary Borrowers on account of the Subsidiary Borrower Obligations
are paid in full and the Commitments are terminated. So long as the Subsidiary
Borrower Obligations remain outstanding, if any amount shall be paid by or on
behalf of any Subsidiary Borrower or any other Person to Viacom on account of
any of the rights waived in this Section 8.1, such amount shall be held by
Viacom in trust, segregated from other funds of Viacom, and shall, forthwith
upon receipt by Viacom, be turned over to the Administrative Agent in the exact
form received by Viacom (duly indorsed by Viacom to the Administrative Agent, if
required), to be applied against the Subsidiary Borrower Obligations, whether
matured or unmatured, in such order as the Administrative Agent may determine.
(c) Amendments, etc. with respect to the Subsidiary Borrower
Obligations. Viacom shall remain obligated under this Section 8.1
notwithstanding that, without any reservation of rights against Viacom, and
without notice to or further assent by Viacom, any demand for payment of or
reduction in the principal amount of any of the Subsidiary Borrower Obligations
made by the Administrative Agent or any Lender may be rescinded by the
Administrative Agent or such Lender, and any of the Subsidiary Borrower
Obligations continued, and the Subsidiary Borrower Obligations, or the liability
of any other party upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or any
Lender, and this Agreement and any other documents executed and delivered in
connection herewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Required Lenders (or all Lenders, as the case may be)
may deem advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by the Administrative Agent or any Lender for
the payment of the Subsidiary Borrower Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Administrative Agent nor any Lender
shall have any obligation to protect, secure, perfect or insure any lien at any
time held by it as security for the Subsidiary Borrower Obligations or for the
guarantee contained in this Section 8.1 or any property subject thereto.
(d) Guarantee Absolute and Unconditional. Viacom waives any and all
notice of the creation, renewal, extension or accrual of any of the Subsidiary
Borrower Obligations and notice of or proof of reliance by the Administrative
Agent or any Lender upon the guarantee contained in this Section 8.1 or
acceptance of the guarantee contained in this Section 8.1; the Subsidiary
Borrower Obligations
72
shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon the guarantee contained
in this Section 8.1; and all dealings between Viacom or the Subsidiary
Borrowers, on the one hand, and the Administrative Agent and the Lenders, on the
other, shall likewise be conclusively presumed to have been had or consummated
in reliance upon the guarantee contained in this Section 8.1. Viacom waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon Viacom or any Subsidiary Borrower with respect to the
Subsidiary Borrower Obligations. The guarantee contained in this Section 8.1
shall be construed as a continuing, absolute and unconditional guarantee of
payment without regard to (a) the validity or enforceability of this Agreement,
any of the Subsidiary Borrower Obligations or any collateral security therefor
or guarantee or right of offset with respect thereto at any time or from time to
time held by the Administrative Agent or any Lender, (b) the legality under
applicable requirements of law of repayment by the relevant Subsidiary Borrower
of any Subsidiary Borrower Obligations or the adoption of any requirement of law
purporting to render any Subsidiary Borrower Obligations null and void, (c) any
defense, setoff or counterclaim (other than a defense of payment or performance
by the applicable Subsidiary Borrower) which may at any time be available to or
be asserted by Viacom against the Administrative Agent or any Lender, or (d) any
other circumstance whatsoever (with or without notice to or knowledge of Viacom
or any Subsidiary Borrower) which constitutes, or might be construed to
constitute, an equitable or legal discharge of any Subsidiary Borrower for any
of its Subsidiary Borrower Obligations, or of Viacom under the guarantee
contained in this Section 8.1, in bankruptcy or in any other instance. When the
Administrative Agent or any Lender is pursuing its rights and remedies under
this Section 8.1 against Viacom, the Administrative Agent or any Lender may, but
shall be under no obligation to, pursue such rights and remedies as it may have
against any Subsidiary Borrower or any other Person or against any collateral
security or guarantee for the Subsidiary Borrower Obligations or any right of
offset with respect thereto, and any failure by the Administrative Agent or any
Lender to pursue such other rights or remedies or to collect any payments from
any Subsidiary Borrower or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of any Subsidiary Borrower or any such other Person or of any such
collateral security, guarantee or right of offset, shall not relieve Viacom of
any liability under this Section 8.1, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Administrative Agent and the Lenders against Viacom.
(e) Reinstatement. The guarantee contained in this Section 8.1 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Subsidiary Borrower Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent
or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Subsidiary Borrower or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, any Subsidiary Borrower or any substantial part of its property, or
otherwise, all as though such payments had not been made.
73
(f) Payments. Viacom hereby agrees that any payments in respect of
the Subsidiary Borrower Obligations pursuant to this Section 8.1 will be paid to
the Administrative Agent without setoff or counterclaim in Dollars at the office
of the Administrative Agent specified in Section 9.1. Notwithstanding the
foregoing, any payments in respect of the Subsidiary Borrower Obligations
pursuant to this Section 8.1 with respect to any Loan denominated in any
Multi-Currency (including principal of or interest on any such Loan or other
amounts) hereunder shall be made without setoff or counterclaim to the
Administrative Agent at its offices at Chase Manhattan International Ltd., 9
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in immediately available
funds.
SECTION 8.2. Viacom International Guarantee. (a) Guarantee. In order
to induce the Administrative Agent and the Lenders to become bound by this
Agreement and to make the Loans hereunder to Viacom, and in consideration
thereof, Viacom International hereby unconditionally and irrevocably guarantees,
as primary obligor and not merely as surety, to the Administrative Agent, for
the ratable benefit of the Lenders, the prompt and complete payment and
performance by Viacom when due (whether at stated maturity, by acceleration or
otherwise) of the Viacom Obligations, and Viacom International further agrees to
pay any and all expenses (including, without limitation, all reasonable fees,
charges and disbursements of counsel) which may be paid or incurred by the
Administrative Agent or by the Lenders in enforcing, or obtaining advice of
counsel in respect of, any of their rights under the guarantee contained in this
Section 8.2(a). The guarantee contained in this Section 8.2(a), subject to
Section 8.2(e), shall remain in full force and effect until the Viacom
Obligations are paid in full and the Commitments are terminated, notwithstanding
that from time to time prior thereto Viacom may be free from any Viacom
Obligations. Viacom International agrees that whenever, at any time, or from
time to time, it shall make any payment to the Administrative Agent or any
Lender on account of its liability under this Section 8.2, it will notify the
Administrative Agent and such Lender in writing that such payment is made under
the guarantee contained in this Section 8.2 for such purpose. No payment or
payments made by Viacom or any other Person or received or collected by the
Administrative Agent or any Lender from Viacom or any other Person by virtue of
any action or proceeding or any setoff or appropriation or application, at any
time or from time to time, in reduction of or in payment of the Viacom
Obligations shall be deemed to modify, reduce, release or otherwise affect the
liability of Viacom International under this Section 8.2 which, notwithstanding
any such payment or payments, shall remain liable for the unpaid and outstanding
Viacom Obligations until, subject to Section 8.2(e), the Viacom Obligations are
paid in full and the Commitments are terminated. Notwithstanding any other
provision herein, the maximum liability of Viacom International under this
Section 8.2 shall in no event exceed the amount which can be guaranteed by
Viacom International under applicable law.
(b) No Subrogation, etc. Notwithstanding any payment or payments
made by Viacom International hereunder, or any set-off or application of funds
of Viacom International by the Administrative Agent or any Lender, Viacom
International shall not be entitled to be subrogated to any of the
74
rights of the Administrative Agent or any Lender against Viacom or against any
collateral security or guarantee or right of offset held by the Administrative
Agent or any Lender for the payment of the Viacom Obligations, nor shall Viacom
International seek or be entitled to seek any contribution, reimbursement,
exoneration or indemnity from or against Viacom in respect of payments made by
Viacom International hereunder, until all amounts owing to the Administrative
Agent and the Lenders by Viacom on account of the Viacom Obligations are paid in
full and the Commitments are terminated. So long as the Viacom Obligations
remain outstanding, if any amount shall be paid by or on behalf of Viacom or any
other Person to Viacom International on account of any of the rights waived in
this Section 8.2, such amount shall be held by Viacom International in trust,
segregated from other funds of Viacom International, and shall, forthwith upon
receipt by Viacom International, be turned over to the Administrative Agent in
the exact form received by Viacom International (duly indorsed by Viacom
International to the Administrative Agent, if required), to be applied against
the Viacom Obligations, whether matured or unmatured, in such order as the
Administrative Agent may determine.
(c) Amendments, etc. with respect to the Viacom Obligations. Viacom
International shall remain obligated under this Section 8.2 notwithstanding
that, without any reservation of rights against Viacom International, and
without notice to or further assent by Viacom International, any demand for
payment of or reduction in the principal amount of any of the Viacom Obligations
made by the Administrative Agent or any Lender may be rescinded by the
Administrative Agent or such Lender, and any of the Viacom Obligations
continued, and the Viacom Obligations, or the liability of any other party upon
or for any part thereof, or any collateral security or guarantee therefor or
right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Lender, and this
Agreement and any other documents executed and delivered in connection herewith
may be amended, modified, supplemented or terminated, in whole or in part, as
the Required Lenders (or all Lenders, as the case may be) may deem advisable
from time to time, and any collateral security, guarantee or right of offset at
any time held by the Administrative Agent or any Lender for the payment of the
Viacom Obligations may be sold, exchanged, waived, surrendered or released.
Neither the Administrative Agent nor any Lender shall have any obligation to
protect, secure, perfect or insure any lien at any time held by it as security
for the Viacom Obligations or for the guarantee contained in this Section 8.2 or
any property subject thereto.
(d) Guarantee Absolute and Unconditional. Viacom International
waives any and all notice of the creation, renewal, extension or accrual of any
of the Viacom Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon the guarantee contained in this Section
8.2 or acceptance of the guarantee contained in this Section 8.2; the Viacom
Obligations shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon the
guarantee contained in this Section 8.2; and all dealings between Viacom
International or Viacom, on the one hand, and the Administrative Agent and the
Lenders, on the other, shall likewise be conclusively presumed to have been had
or consummated
75
in reliance upon the guarantee contained in this Section 8.2. Viacom
International waives diligence, presentment, protest, demand for payment and
notice of default or nonpayment to or upon Viacom International or Viacom with
respect to the Viacom Obligations. The guarantee contained in this Section 8.2
shall be construed as a continuing, absolute and unconditional guarantee of
payment without regard to (a) the validity or enforceability of this Agreement,
any of the Viacom Obligations or any collateral security therefor or guarantee
or right of offset with respect thereto at any time or from time to time held by
the Administrative Agent or any Lender, (b) the legality under applicable
requirements of law of repayment by Viacom of any Viacom Obligations or the
adoption of any requirement of law purporting to render any Viacom Obligations
null and void, (c) any defense, setoff or counterclaim (other than a defense of
payment or performance by Viacom) which may at any time be available to or be
asserted by Viacom International against the Administrative Agent or any Lender,
or (d) any other circumstance whatsoever (with or without notice to or knowledge
of Viacom International or Viacom) which constitutes, or might be construed to
constitute, an equitable or legal discharge of Viacom for any of its Viacom
Obligations, or of Viacom International under the guarantee contained in this
Section 8.2, in bankruptcy or in any other instance. When the Administrative
Agent or any Lender is pursuing its rights and remedies under this Section 8.2
against Viacom International, the Administrative Agent or any Lender may, but
shall be under no obligation to, pursue such rights and remedies as it may have
against Viacom or any other Person or against any collateral security or
guarantee for the Viacom Obligations or any right of offset with respect
thereto, and any failure by the Administrative Agent or any Lender to pursue
such other rights or remedies or to collect any payments from Viacom or any such
other Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of Viacom or any such other
Person or of any such collateral security, guarantee or right of offset, shall
not relieve Viacom International of any liability under this Section 8.2, and
shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Administrative Agent and the Lenders
against Viacom International.
(e) Reinstatement. The guarantee contained in this Section 8.2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Viacom Obligations is rescinded or
must otherwise be restored or returned by the Administrative Agent or any Lender
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
Viacom or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, Viacom or any substantial
part of its property, or otherwise, all as though such payments had not been
made.
(f) Payments. Viacom International hereby agrees that any payments
in respect of the Viacom Obligations pursuant to this Section 8.2 will be paid
to the Administrative Agent without setoff or counterclaim in Dollars at the
office of the Administrative Agent specified in Section 9.1. Notwithstanding the
foregoing, any payments in respect of the Viacom Obligations pursuant to this
Section 8.2 with respect to any Loan denominated in any Multi-Currency
(including principal of or interest on any such Loan or other amounts) hereunder
shall be made without
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setoff or counterclaim to the Administrative Agent at its offices at Chase
Manhattan International Ltd., 9 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇-▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, in immediately available funds.
(g) Release of Guarantee. Notwithstanding the foregoing, the
guarantee contained in this Section 8.2 shall be released on the earlier of the
date on which (i) all notes, debentures and bonds now or hereafter issued by
Viacom which carry a Viacom International guarantee (the "Bonds") are paid in
full and (ii) the guarantee of Viacom International with respect to the Bonds is
released. On such date, this Section 8.2, including without limitation Section
8.2(e), shall be deemed to have no legal effect whatsoever.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Notices. Notices and other communications provided for
herein shall be in writing (or, where permitted to be made by telephone, shall
be confirmed promptly in writing) and shall be delivered by hand or overnight
courier service, mailed or sent by telecopier as follows:
(a) if to Viacom, to it at Viacom Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention of Vice President and Treasurer (Telecopy No. (212)
860-2341), with a copy to General Counsel (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to Viacom International, to it c/o Viacom Inc., ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Vice President and Treasurer
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to General Counsel (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to the Administrative Agent, to it at The Chase Manhattan
Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(Telecopy No. 212-270-1204), with a copy to The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy
No. 212-552-5700);
(d) if to any Issuing Lender, to it at the address for notices
specified in the applicable Issuing Lender Agreement;
(e) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 1.1 or in the Assignment and Acceptance pursuant to which such
Lender shall have become a party hereto; and
(f) if to a Subsidiary Borrower, to it at its address set forth in
the relevant Subsidiary Borrower Request.
Notwithstanding the foregoing, each of Viacom, any other Borrower, the
Administrative Agent and the Issuing Lender may, in its discretion, provide any
notice, report or other information to
77
be provided under this Agreement to a Lender by (i) electronic mail to the
electronic mail address provided by such Lender in its Administrative
Questionnaire and/or (ii) through access to a web site. All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on (A) the date of receipt if
delivered by hand or overnight courier service or sent by telecopy or electronic
mail, (B) the date of posting if given by web site access, (C) the date of such
telephone call, if permitted by the terms hereof and if promptly confirmed in
writing, or (D) on the date five Business Days after dispatch by registered mail
if mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 9.1 or in accordance with the latest unrevoked
direction from such party given in accordance with this Section 9.1.
SECTION 9.2. Survival of Agreement. All representations and
warranties made hereunder and in any certificate delivered pursuant hereto or in
connection herewith shall be considered to have been relied upon by the Agents
and the Lenders and shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder, regardless
of any investigation made by the Agents or the Lenders or on their behalf.
SECTION 9.3. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of each Borrower, each Agent and each Lender and their
respective successors and assigns, except that Viacom shall not have the right
to assign its rights or obligations hereunder or any interest herein without the
prior consent of all the Lenders.
SECTION 9.4. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party, and all covenants, promises
and agreements by or on behalf of each Borrower, any Agent or any Lender that
are contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion
of its interests, rights and obligations under this Agreement (including all or
a portion of its Commitment or Swingline Commitment and the Loans at the time
owing to it); provided, however, that (i) except in the case of an assignment to
a Lender or a Lender Affiliate (other than if at the time of such assignment,
such Lender or Lender Affiliate would be entitled to require any Borrower to pay
greater amounts under Section 2.20(a) than if no such assignment had occurred,
in which case such assignment shall be subject to the consent requirement of
this clause (i)), Viacom and the Administrative Agent must give their prior
written consent to such assignment (which consent shall not be unreasonably
withheld or delayed), (ii) (x) except in the case of assignments to any Person
that is a Lender prior to giving effect to such assignment, the amount of the
aggregate Commitments and/or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $10,000,000 (or, if
78
applicable, the Dollar equivalent thereof), (y) the amount of the aggregate
Commitments and/or Loans retained by any assigning Lender (determined as of the
date the Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $10,000,000 (or, if
applicable, the Dollar equivalent thereof), unless (in the case of clause (x) or
(y) above) the assigning Lender's Commitment and Loans (other than any
Competitive Loans) are being reduced to $0 pursuant to such assignment, and (z)
each assignment by each US-Canadian Lender of a Canadian Commitment shall be to
an additional bank, financial institution or other entity that is engaged in the
business of loaning money which has the established capability of providing C$
Loans, (iii) the assignor and assignee shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500 and (iv) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to Section 9.4(e), from
and after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five Business Days (or, with respect to
Canadian Loans or Canadian Commitments, five Business Days (Canada)) after the
execution thereof (or any lesser period to which the Administrative Agent and
Viacom may agree), (A) the assignee with respect to a Facility hereunder shall
be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender to such Facility
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto (but shall continue to be entitled to the benefits of Sections 2.15,
2.16, 2.20 and 9.5 and subsection 3.7 of Annex II, as applicable, as well as to
any Fees accrued for its account hereunder and not yet paid)). Notwithstanding
the foregoing, any Lender or Issuing Lender assigning its rights and obligations
under this Agreement may maintain any Competitive Loans or Letters of Credit
made or issued by it outstanding at such time, and in such case shall retain its
rights hereunder in respect of any Loans or Letters of Credit so maintained
until such Loans or Letters of Credit have been repaid or terminated in
accordance with this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim created
by such assigning Lender, (ii) except as set forth in clause (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or any other instrument or document
furnished pursuant hereto, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto or the financial condition of Viacom or any
of its Subsidiaries or the performance or observance by Viacom or any of its
Subsidiaries of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to
79
Sections 3.2 and 5.1 and such other documents and information as it has deemed
appropriate to make it own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, such assigning Lender or any other Agent
or Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as agent of
each Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender under each Facility
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive in the absence of manifest error and each
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by any Borrower and any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of Viacom and the Administrative
Agent to such assignment, the Administrative Agent shall (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to Viacom.
(f) Each Lender may without the consent of any Borrower or the
Agents sell participations to one or more banks, other financial institutions or
other entities (provided, that any such other entity is a not a competitor of
Viacom or any Affiliate of Viacom) all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitments
and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (ii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.15, 2.16 and 2.20 and subsection 3.7, as applicable, to the same extent as if
they were Lenders under the Facility of the Lender which sold the participation
to such participating bank (provided, that additional amounts payable to any
Lender pursuant to Section 2.20 or subsection 3.7, as applicable, shall be
determined as if such Lender had not sold any such participations) and (iv) the
Borrowers, the Agents and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of each Borrower relating to the Loans and the Letters
of Credit and to approve any amendment,
80
modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable hereunder or
the amount of principal of or the rate at which interest is payable on the Loans
or LC Disbursements, extending any scheduled principal payment date or date
fixed for the payment of interest on the Loans or LC Disbursements or of LC Fees
or Facility Fees or Acceptance Fees, increasing the amount of or extending the
Commitments under the relevant Facility or releasing the guarantee contained in
Section 8.1 or 8.2 (except in accordance with Section 8.2(g)), in each case to
the extent the relevant participant is directly affected thereby).
(g) Any Lender or participant may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 9.4, disclose to the assignee or participant or proposed assignee or
participant any information relating to any Borrower furnished to such Lender by
or on behalf of such Borrower; provided, that, prior to any such disclosure of
information designated by such Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute a Confidentiality
Agreement whereby such assignee or participant shall agree (subject to the
exceptions set forth therein) to preserve the confidentiality of such
confidential information. A copy of each such Confidentiality Agreement executed
by an assignee shall be promptly furnished to Viacom. It is understood that
confidential information relating to the Borrowers would not ordinarily be
provided in connection with assignments or participations of Competitive Loans.
(h) Notwithstanding the limitations set forth in paragraph (b)
above, (i) any Lender may at any time assign or pledge all or any portion of its
rights under this Agreement to a Federal Reserve Bank and (ii) any Lender which
is a "fund" may at any time assign or pledge all or any portion of its rights
under this Agreement to secure such Lender's indebtedness, in each case without
the prior written consent of any Borrower or the Administrative Agent; provided,
that each such assignment shall be made in accordance with applicable law and no
such assignment shall release a Lender from any of its obligations hereunder. In
order to facilitate any such assignment, each Borrower shall, at the request of
the assigning Lender, duly execute and deliver to the assigning Lender a
registered promissory note or notes evidencing the Loans made to such Borrower
by the assigning Lender hereunder.
(i) Notwithstanding anything to the contrary contained herein, any
Bank (a "Granting Bank") may grant to a special purpose funding vehicle (a
"SPC"), identified as such in writing from time to time by the Granting Bank to
the Administrative Agent and the relevant Borrower, the option to provide to
such Borrower all or any part of any Loan that such Granting Bank would
otherwise be obligated to make to such Borrower pursuant to this Agreement;
provided, that (i) nothing herein shall constitute a commitment by any SPC to
make any Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Bank shall
be obligated to make such Loan pursuant to the terms hereof. The making of a
Loan by an SPC hereunder shall utilize the Commitment of the Granting Bank to
the same extent, and as if, such Loan were made by such Granting Bank. Each
party hereto hereby agrees that no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for which shall
remain with the Granting Bank). In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior indebtedness
of any SPC, it will not institute
81
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section, any SPC may
(i) with notice to, but without the prior written consent of, the relevant
Borrower and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the Granting
Bank or to any financial institutions (consented to by such Borrower and the
Administrative Agent ) providing liquidity and/or credit support to or for the
account of such SPC to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPC. This section may not
be amended without the written consent of any SPC which has been identified as
such by the Granting Bank to the Administrative Agent and the relevant Borrower
and which then holds any Loan pursuant to this paragraph (i).
(j) Neither Viacom nor any Subsidiary Borrower shall assign or
delegate any of its rights or duties hereunder without the prior consent of all
the Lenders; provided, Viacom may assign or delegate any of its rights or duties
hereunder (excepting its rights and duties pursuant to Section 8.1) to any
Subsidiary Borrower and any Subsidiary Borrower may assign or delegate any of
its rights or duties hereunder to Viacom or (excepting Viacom International's
rights and duties pursuant to 8.2) to any other Subsidiary Borrower, in each
case without the prior consent of the Lenders unless such assignment would
adversely affect the Lenders; provided, further, Viacom may and any Subsidiary
Borrower may assign or delegate any of its rights and duties hereunder pursuant
to a merger or consolidation permitted by Section 5.4(b) or (d) without the
prior consent of the Lenders.
SECTION 9.5. Expenses; Indemnity. (a) Viacom agrees to pay all
reasonable legal and other out-of-pocket expenses incurred by ▇▇ ▇▇▇▇▇▇, a
division of Chase Securities Inc., in its capacity as a Joint Lead Arranger and
in its capacity as the Sole Bookrunner, and by the Administrative Agent and
their respective affiliates in connection with the preparation, negotiation,
execution and delivery of this Agreement or in connection with any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions hereby contemplated shall be consummated) or incurred by any Agent,
any Lender or any Issuing Lender in connection with the enforcement or
protection of the rights of the Agents, the Lenders or the Issuing Lenders under
this Agreement or in connection with the Loans made or the Letters of Credit
issued hereunder, including, without limitation, the reasonable fees, charges
and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (as set forth the in the Letter
Agreement, dated as of February 2, 2001, between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ and
Viacom), counsel for ▇▇ ▇▇▇▇▇▇, a division of Chase Securities Inc., in its
capacity as a Joint Lead Arranger and in its capacity as the Sole Bookrunner,
and the Administrative Agent, and, in connection with any such enforcement or
protection, the reasonable fees, charges and disbursements of any other counsel
for any Agent, Lender or Issuing Lender.
(b) Viacom agrees to indemnify and hold harmless each Agent, each
Lender, each Issuing Lender and each of their respective directors, officers,
employees, affiliates and agents (each, an "Indemnified Person") against, and to
reimburse each Indemnified Person, upon
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its demand, for, any losses, claims, damages, liabilities or other expenses
("Losses"), to which such Indemnified Person becomes subject insofar as such
Losses arise out of or in any way relate to or result from (i) the execution or
delivery of this Agreement, any Letter of Credit or any agreement or instrument
contemplated hereby (and any amendment hereto or thereto), the performance by
the parties hereto or thereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby or (ii) the use (or proposed use) of the proceeds of the Loans or other
extensions of credit hereunder, including, without limitation, Losses consisting
of reasonable legal, settlement or other expenses incurred in connection with
investigating, defending or participating in any legal proceeding relating to
any of the foregoing (whether or not such Indemnified Person is a party
thereto); provided, that the foregoing will not apply to any Losses to the
extent they are found by a final decision of a court of competent jurisdiction
to have resulted from the gross negligence or willful misconduct of such
Indemnified Person. No Indemnified Person shall be liable for any damages
arising from the use by others of Information or other materials obtained
through electronic, telecommunications or other information transmission systems
(provided, that the foregoing will not apply to any Losses to the extent they
are found by a final decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Indemnified
Person).
(c) The provisions of this Section 9.5 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf of any
Agent or Lender. All amounts under this Section 9.5 shall be payable on written
demand therefor.
SECTION 9.6. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Agent and each Lender is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Agent or Lender to or for the credit or the account of any Borrower
against any of and all the obligations of such Borrower now or hereafter
existing under this Agreement or the Administrative Agent Fee Letter held by
such Agent or Lender which shall be due and payable. The rights of each Agent
and each Lender under this Section 9.6 are in addition to other rights and
remedies (including other rights of setoff) which such Agent or Lender may have.
SECTION 9.7. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.8. Waivers; Amendment. (a) No failure or delay of any
Agent, any Issuing Lender or any Lender in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or
83
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agents, the Issuing Lenders and the Lenders hereunder are
cumulative and are not exclusive of any rights or remedies which they would
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any Borrower from any such provision shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on any Borrower in any case
shall entitle any Borrower to any other or further notice or demand in similar
or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement in writing entered into by
the Borrowers and the Required Lenders; provided, however, that no such
agreement shall (i) reduce the amount or extend the scheduled date of maturity
of any Loan or of any installment thereof, or reduce the stated amount of any LC
Disbursement, interest or fee payable hereunder or extend the scheduled date of
any payment thereof or increase the amount or extend the expiration date of any
Commitment of any Lender, in each case without the prior written consent of each
Lender directly affected thereby; (ii) amend, modify or waive any provision of
this Section 9.8(b), or reduce the percentage specified in the definition of
"Required Lenders", release the guarantee contained in Section 8.1 or 8.2
(except in accordance with Section 8.2(g)) or consent to the assignment or
delegation by Viacom or any Subsidiary Borrower of any of its rights and
obligations under this Agreement (except (A) by Viacom (excepting its rights and
duties pursuant to Section 8.1) to any Subsidiary Borrower or (B) by any
Subsidiary Borrower to Viacom or (excepting Viacom International's rights and
duties pursuant to Section 8.2) to any other Subsidiary Borrower and as set
forth in Section 9.4(j)), in each case without the prior written consent of all
the Lenders, (iii) reduce the percentage specified in the definition of (A)
"Required US-Canadian Lenders" without the prior written consent of all
US-Canadian Lenders (it being understood that the consent of the Required
Revolving Lenders shall not also be required) or (B) "Required Revolving
Lenders" without the prior written consent of all Lenders (excluding US-Canadian
Lenders) (it being understood that the consent of the Required US-Canadian
Lenders shall not also be required); (iv) amend, modify or waive any provision
of Annex II or any provision with respect to the US$-Canadian Loans, C$ Loans or
Canadian Commitments without the prior written consent of the Required
US-Canadian Lenders (it being understood that the consent of the Required
Revolving Lenders or the Required Lenders shall not be required), (v) amend,
modify or waive any provision with respect to the Revolving Credit Loans or
Revolving Commitments without the prior written consent of the Required
Revolving Lenders (it being understood that the consent of the Required
US-Canadian Lenders or the Required Lenders shall not be required) or (vi)
amend, modify or waive any provision of Article VII without the prior written
consent of each Agent affected thereby; provided, further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Swingline Lenders or the Issuing Lenders hereunder in
such capacity without the prior written consent of the Administrative Agent,
each Swingline Lender directly affected thereby or each Issuing Lender directly
affected thereby, as the case may be.
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SECTION 9.9. Entire Agreement. This Agreement (together with the
Issuing Lender Agreements, the Subsidiary Borrower Designations and the
Subsidiary Borrower Requests) constitutes the entire contract between the
parties relative to the subject matter hereof. Any previous agreement among the
parties with respect to the subject matter hereof is superseded by this
Agreement. Nothing in this Agreement, expressed or implied, is intended to
confer upon any party other than the parties hereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
SECTION 9.10. Waiver of Jury Trial. Each party hereto hereby waives,
to the fullest extent permitted by applicable law, any right it may have to a
trial by jury in respect of any litigation directly or indirectly arising out
of, under or in connection with this Agreement. Each party hereto (a) certifies
that no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver and (b) acknowledges that it
and the other parties hereto have been induced to enter into this Agreement by,
among other things, the mutual waivers and certifications in this Section 9.10.
SECTION 9.11. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 9.12. Counterparts. This Agreement may be executed in two or
more counterparts, each of which constitute an original but all of which when
taken together shall constitute but one contract, and shall become effective as
provided in Section 9.3.
SECTION 9.13. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.14. Jurisdiction; Consent to Service of Process. (a) Each
Borrower hereby irrevocably and unconditionally submits, for itself and its
Property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard
85
and determined in such New York State court or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Each Subsidiary Borrower designates and directs Viacom at its offices at
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent to receive service of any
and all process and documents on its behalf in any legal action or proceeding
referred to in this Section 9.14 in the State of New York and agrees that
service upon such agent shall constitute valid and effective service upon such
Subsidiary Borrower and that failure of Viacom to give any notice of such
service to any Subsidiary Borrower shall not affect or impair in any way the
validity of such service or of any judgment rendered in any action or proceeding
based thereon. Nothing in this Agreement shall affect any right that any Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against any Borrower or its Properties in the courts of any
jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any New York State or
Federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.1. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.15. Confidentiality. (a) Each Lender agrees to keep
confidential and not to disclose (and to cause its affiliates, officers,
directors, employees, agents and representatives to keep confidential and not to
disclose) and, at the request of Viacom (except as provided below or if such
Lender is required to retain any Confidential Information (as defined below)
pursuant to customary internal or banking practices, bank regulations or
applicable law), promptly to return to Viacom or destroy the Confidential
Information and all copies thereof, extracts therefrom and analyses or other
materials based thereon, except that such Lender shall be permitted to disclose
Confidential Information (i) to such of its officers, directors, employees,
agents, affiliates and representatives as need to know such Confidential
Information in connection with such Lender's participation in this Agreement,
each of whom shall be informed by such Lender of the confidential nature of the
Confidential Information and shall agree to be bound by the terms of this
Section 9.15; (ii) to the extent required by applicable laws and regulations or
by any subpoena or similar legal process or requested by any Governmental
Authority or agency having jurisdiction over such Lender; provided, however,
that, except in the case of disclosure to bank regulators or examiners in
accordance with customary banking practices, if legally permitted written notice
of each instance in which Confidential Information is required or requested to
be disclosed shall be furnished to Viacom not less than 30 days prior to the
expected date of such disclosure or, if 30 days' notice is not practicable under
the circumstances, as promptly as practicable under the circumstances; (iii) to
the extent such Confidential Information (A) is or becomes publicly available
other than as a result of a breach of this Agreement, (B) becomes available to
such Lender on a non-
86
confidential basis from a source other than a party to this Agreement or any
other party known to such Lender to be bound by an agreement containing a
provision similar to this Section 9.15 or (C) was available to such Lender on a
non-confidential basis prior to this disclosure to such Lender by a party to
this Agreement or any other party known to such Lender to be bound by an
agreement containing a provision similar to this Section 9.15; (iv) as permitted
by Section 9.4(g); or (v) to the extent Viacom shall have consented to such
disclosure in writing. As used in this Section 9.15, "Confidential Information"
shall mean any materials, documents or information furnished by or on behalf of
any Borrower in connection with this Agreement designated by or on behalf of
such Borrower as confidential.
(b) Each Lender (i) agrees that, except to the extent the conditions
referred to in subclause (A), (B) or (C) of clause (iii) of paragraph (a) above
have been met and as provided in paragraph (c) below, (A) it will use the
Confidential Information only in connection with its participation in this
Agreement and (B) it will not use the Confidential Information in connection
with any other matter or in a manner prohibited by any law, including, without
limitation, the securities laws of the United States and (ii) understands that
breach of this Section 9.15 might seriously prejudice the interest of the
Borrowers and that the Borrowers are entitled to equitable relief, including an
injunction, in the event of such breach.
(c) Notwithstanding anything to the contrary contained in this
Section 9.15, each Agent and each Lender shall be entitled to retain all
Confidential Information for so long as it remains an Agent or a Lender to use
solely for the purposes of servicing the credit and protecting its rights
hereunder.
SECTION 9.16. Waiver of Notice of Termination Period. By its
execution of this Agreement, each Lender hereby waives any right to notice of
termination, or any notice period with respect to the termination, of any
Existing Credit Agreement that such Lender may have had under such Existing
Credit Agreement.
[Remainder of the page left blank intentionally; Signature page to follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
VIACOM INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
VIACOM INTERNATIONAL INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC., as
Syndication Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Attorney-in-Fact
FLEET NATIONAL BANK, as Co-Documentation
Agents and as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
BANK OF AMERICA, N.A., as Co-Documentation
Agents and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
THE CHASE MANHATTAN BANK, TORONTO BRANCH,
as a Lender,
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Authorized Representative
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Representative
CITIBANK, N.A., as a Lender,
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
CITIBANK CANADA, as a Lender,
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA CANADA, as a Lender,
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Corporate Investment
Banking
THE SUMITOMO BANK, LIMITED, as a Lender,
By: /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NEW YORK, as a Lender,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD., NY
BRANCH, as a Lender,
By: /s/ ▇.▇. ▇▇▇▇▇▇▇, ▇▇.
----------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Executive Vice President
DEUTSCHE BANK A.G., NEW YORK BRANCH
and/or CAYMAN ISLANDS BRANCH, as a Lender,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK CANADA, as a Lender,
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
THE DAI-ICHI KANGYO BANK, LTD. (dba
Mizuho Financial Group), as a Lender,
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
THE FUJI BANK, LIMITED, as a Lender,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President & Senior Team Leader
THE INDUSTRIAL BANK OF JAPAN, LIMITED
(d.b.a. Mizuho Financial Group),
as a Lender,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NOVA SCOTIA, as a Lender,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Authorized Signatory
BARCLAYS BANK PLC, as a Lender,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
THE SANWA BANK, LIMITED, NEW YORK BRANCH,
as a Lender,
By: /s/ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Lender,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
MELLON BANK, N.A., as a Lender,
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Lending Officer
CREDIT SUISSE FIRST BOSTON, as a Lender,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇ ▇'▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇'▇▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON CANADA,
as a Lender,
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
BANK ONE, NA, as a Lender,
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Corporate Banking Officer
BANK ONE CANADA (to be ▇▇▇▇ ▇▇▇, ▇▇,
▇▇▇▇▇▇ BRANCH as of 3/31/01 and thereafter),
as a Lender,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First Vice President
THE ROYAL BANK OF SCOTLAND PLC, as a Lender,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
WACHOVIA BANK, N.A., as a Lender,
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH, as a Lender,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ Pascal Kabemba
----------------------------------------
Name: Pascal Kabemba
Title: Associate Director
LLOYDS TSB BANK PLC, as a Lender,
By: /s/ Windsor ▇. ▇▇▇▇▇▇
----------------------------------------
Name: Windsor ▇. ▇▇▇▇▇▇
Title: Director, Corporate Bank, USA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE NORINCHUKIN BANK, NEW YORK BRANCH,
as a Lender,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: General Manager
SUNTRUST BANK, as a Lender,
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
ABN AMRO BANK NV, as a Lender,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Group Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Corporate Banking Officer
UBS AG, STAMFORD BRANCH, as a Lender,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director Banking Product Services, US
By: /s/ ▇▇▇▇▇▇▇ ▇. Saint
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Saint
Title: Associate Director Banking Product
Services, US
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA, as a Lender,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Credit Officer
NATIONAL AUSTRALIA BANK LIMITED, A.C.N.
004044937, as a Lender,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Head of Media & Entertainment
THE TOKAI BANK, LIMITED - NEW YORK
BRANCH, as a Lender,
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant General Manager