EXHIBIT 10.1
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$2,500,000,000
18-MONTH CREDIT AGREEMENT
among
VIACOM INC.,
VIACOM INTERNATIONAL INC.,
THE SUBSIDIARY BORROWERS PARTIES HERETO,
THE LENDERS NAMED HEREIN,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
CITIBANK, N.A.,
as Syndication Agent
and
BANK OF AMERICA, N.A., DEUTSCHE BANK SECURITIES, INC., and
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH,
as Co-Documentation Agents,
Dated as of May 12, 2005
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Sole Bookrunner
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.................................................1
SECTION 1.1. Defined Terms..........................................1
SECTION 1.2. Terms Generally........................................19
ARTICLE II THE CREDITS.................................................20
SECTION 2.1. Commitments............................................20
SECTION 2.2. Revolving Credit Loans; Competitive Loans..............21
SECTION 2.3. Competitive Bid Procedure..............................21
SECTION 2.4. Revolving Credit Borrowing Procedure...................24
SECTION 2.5. Repayment of Loans.....................................24
SECTION 2.6. Swingline Loans........................................25
SECTION 2.7. Letters of Credit......................................28
SECTION 2.8. Conversion and Continuation Options....................32
SECTION 2.9. Fees...................................................33
SECTION 2.10. Interest on Loans; Eurocurrency Tranches; Etc..........34
SECTION 2.11. Default Interest.......................................35
SECTION 2.12. Alternate Rate of Interest.............................35
SECTION 2.13. Termination and Reduction of Commitments...............36
SECTION 2.14. Optional Prepayments of Revolving Credit Loans.........36
SECTION 2.15. Reserve Requirements; Change in Circumstances..........37
SECTION 2.16. Indemnity..............................................38
SECTION 2.17. Pro Rata Treatment; Funding Matters; Evidence of Debt..39
SECTION 2.18. Sharing of Setoffs.....................................41
SECTION 2.19. Payments...............................................41
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SECTION 2.20. Taxes..................................................42
SECTION 2.21. Termination or Assignment of Commitments Under Certain
Circumstances..........................................44
SECTION 2.22. Currency Equivalents...................................45
SECTION 2.23. Judgment Currency......................................46
ARTICLE III REPRESENTATIONS AND WARRANTIES..............................46
SECTION 3.1. Corporate Existence....................................47
SECTION 3.2. Financial Condition....................................47
SECTION 3.3. Litigation.............................................47
SECTION 3.4. No Breach, etc.........................................47
SECTION 3.5. Corporate Action.......................................48
SECTION 3.6. Approvals..............................................48
SECTION 3.7. ERISA..................................................48
SECTION 3.8. Taxes..................................................48
SECTION 3.9. Investment Company Act.................................48
SECTION 3.10. Environmental..........................................48
SECTION 3.11. Material Subsidiaries..................................49
ARTICLE IV CONDITIONS OF EFFECTIVENESS AND LENDING.....................49
SECTION 4.1. Effectiveness..........................................49
SECTION 4.2. Initial Loans to Subsidiary Borrowers..................49
SECTION 4.3. All Credit Events......................................50
ARTICLE V COVENANTS...................................................50
SECTION 5.1. Financial Statements...................................50
SECTION 5.2. Corporate Existence, Etc...............................53
SECTION 5.3. Insurance..............................................53
SECTION 5.4. Prohibition of Fundamental Changes.....................53
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SECTION 5.5. Limitation on Liens....................................54
SECTION 5.6. Limitation on Subsidiary Indebtedness..................55
SECTION 5.7. Consolidated Coverage Ratio............................56
SECTION 5.8. Use of Proceeds........................................56
SECTION 5.9. Transactions with Affiliates...........................56
ARTICLE VI EVENTS OF DEFAULT...........................................56
ARTICLE VII THE AGENTS..................................................59
ARTICLE VIII GUARANTEES..................................................61
SECTION 8.1. Viacom Guarantee.......................................61
SECTION 8.2. Viacom International Guarantee.........................64
ARTICLE IX MISCELLANEOUS...............................................66
SECTION 9.1. Notices................................................66
SECTION 9.2. Survival of Agreement..................................67
SECTION 9.3. Binding Effect.........................................67
SECTION 9.4. Successors and Assigns.................................68
SECTION 9.5. Expenses; Indemnity....................................71
SECTION 9.6. Right of Setoff........................................72
SECTION 9.7. APPLICABLE LAW.........................................73
SECTION 9.8. Waivers; Amendment.....................................73
SECTION 9.9. Entire Agreement.......................................73
SECTION 9.10. Waiver of Jury Trial...................................74
SECTION 9.11. Severability...........................................74
SECTION 9.12. Counterparts...........................................74
SECTION 9.13. Headings...............................................74
SECTION 9.14. Jurisdiction; Consent to Service of Process............74
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SECTION 9.15. Confidentiality........................................75
SECTION 9.16. Consent to Amendments to Existing Credit Agreements....76
SECTION 9.17. Patriot Act Notice.....................................76
ANNEXES
Annex I Pricing Schedule
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 Revolving Credit Borrowing Request
Exhibit B-5 Form of Swingline Borrowing Request
Exhibit B-6 Form of Notice of Designated Letter of Credit
Exhibit B-7 Form of Subsidiary Borrower Designation
Exhibit B-8 Form of Subsidiary Borrower Request
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Confidentiality Agreement
Exhibit E Form of Closing Certificate
Exhibit F Form of Issuing Lender Agreement
Exhibit G Form of Amendment No. 4 to Existing $1.5 Billion Five-Year
Credit Agreement
Exhibit H Form of Amendment No. 1 to Existing $3.0 Billion Five-Year
Credit Agreement
SCHEDULES
Schedule 1.1 Commitments; Addresses for Notices
Schedule 1.1(a) Guarantees
Schedule 5.6 Subsidiary Indebtedness
Schedule VI(h) Judgments
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18-MONTH CREDIT AGREEMENT entered into as of May 12, 2005, among VIACOM
INC., a Delaware corporation ("Viacom"), VIACOM INTERNATIONAL INC. ("Viacom
International"), each Subsidiary Borrower (as herein defined); the lenders whose
names appear on Schedule 1.1 hereto or who subsequently become parties hereto as
provided herein (the "Lenders"); JPMORGAN CHASE BANK, N.A., a national banking
association ("JPMorgan Chase"), as administrative agent for the Lenders;
CITIBANK, N.A., a national banking association, as syndication agent for the
Lenders (in such capacity, the "Syndication Agent"); and BANK OF AMERICA, N.A.,
DEUTSCHE BANK SECURITIES, INC. and THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK
BRANCH, 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, commercial paper backup
and the repayment of existing bonds), which extensions of credit shall enable
the Borrowers (as herein defined) to borrow loans and cause the issuance of
letters of credit in an aggregate amount not to exceed $2.5 billion (except as
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 $1.0 billion
(except as reduced pursuant to Section 2.13), which the Lenders will make
available to the Borrowers 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
WHEREAS, the Lenders are willing to extend credit to the Borrowers on the
terms and subject to the conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR Loan" shall mean (a) any Revolving Credit Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II and (b) any ABR Swingline Loan.
"ABR Revolving Credit Loan" shall mean any Revolving Credit Loan which is
an ABR Loan.
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"ABR Swingline Exposures" shall mean at any time the aggregate principal
amount at such time of the outstanding ABR Swingline Loans. The ABR Swingline
Exposure of any Lender at any time shall mean its Revolving Credit Percentage of
the aggregate ABR Swingline Exposures at such time.
"ABR Swingline Loan" shall have the meaning assigned to such term in
Section 2.6(a).
"Absolute Rate Loan" shall mean any Competitive Loan bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal rounded to
no more than four decimal places) specified by the Lender making such Loan in
its Competitive Bid.
"Administrative Agent" shall mean JPMorgan Chase, together with its
affiliates, as an arranger of the Commitments and as the administrative agent
for the Lenders under this Agreement, and any successor thereto pursuant to
Article VII.
"Administrative Agent Fee Letter" shall mean the Fee Letter with respect to
this Agreement between 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 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 Joint Lead Arrangers, the Sole Bookrunner, the Co-Documentation Agents 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
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Lenders, as the case may be, have not been reimbursed by Viacom or the relevant
Subsidiary Borrower at such time.
"Agreement" shall mean this 18-Month 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 rate per annum set forth
under the caption "Applicable Eurocurrency Margin" in Annex I hereto.
"Applicable Facility Fee Rate" shall mean the rate per annum set forth
under the caption "Applicable Facility Fee Rate" in Annex I hereto.
"Applicable LC Fee Rate" shall mean (a) with respect to Financial Letters
of Credit, the rate per annum set forth under the caption "Applicable Financial
LC Fee Rate" in Annex I hereto, and (b) with respect to Non-Financial Letters of
Credit, the rate per annum set forth under the caption "Applicable Non-Financial
LC Fee Rate" 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.
"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).
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"Borrower" shall mean, as applicable, Viacom or the relevant Subsidiary
Borrower.
"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 (including 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 London
interbank market.
"Capital Lease Obligations" of any Person shall mean the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property (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.
"Closing Certificate" shall mean a certificate, substantially in the form
of Exhibit E.
"Closing Date" shall mean May 12, 2005.
"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.
"Commitment" shall mean, with respect to each Lender, the commitment of
such Lender to make Revolving Credit Loans pursuant to Section 2.1, to make or
refund ABR Swingline Loans pursuant to Section 2.6 and to issue or participate
in Letters of Credit pursuant to Section 2.7, as set forth on Schedule 1.1, as
such Lender's Commitment may be permanently terminated or reduced from time to
time pursuant to Section 2.13 or changed pursuant to Section 9.4.
"Commitment Utilization Percentage" shall mean on any day the percentage
equivalent to a fraction (a) the numerator of which is the aggregate outstanding
principal amount of Revolving Credit Loans, including the aggregate outstanding
principal amount of Letters of Credit, Swingline Loans and Competitive Loans,
and (b) the denominator of which is the Total Commitment (or, on any day after
termination of the Commitments, the Total Commitment in effect immediately
preceding such termination).
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"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, (iii)
pension settlement charges and (iv) non-cash charges associated with grants of
stock options, employee stock purchase plans and other equity-based compensation
awards to employees and directors, in each case under this clause (iv) that are
expensed in accordance with SFAS No. 123r), 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 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).
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"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 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, with the consent of such Issuing Lender, as a "Letter of
Credit" hereunder by written notice to the Administrative Agent in the form of
Exhibit B-6.
"Discontinued Operations" shall mean the operations classified as
"discontinued operations" pursuant to Accounting Principles Board Opinion No. 30
as presented in the quarterly report of CBS on Form 10-Q for the quarter ended
September 30, 1997 and filed with the SEC on November 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, 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
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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 (except any Eurocurrency Loan denominated in
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 London 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. With respect to clause (a) of the preceding
sentence, 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 (i) in the case of a Eurocurrency Tranche, the
portion of such Eurocurrency Tranche of the Lender serving as Administrative
Agent and (ii) 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 Credit
Loan, and for a maturity comparable to such Interest Period, are offered by the
principal London offices of the Reference Banks (or, if any Reference Bank does
not at the time maintain a London office, the principal London office of any
affiliate of such Reference Bank) for immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
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"Eurocurrency Revolving Credit Loan" shall mean any Revolving Credit Loan
which is a Eurocurrency Loan. Subject to the limitations contained herein, a
Eurocurrency Revolving Credit Loan may be a Multi-Currency Revolving Loan.
"Eurocurrency Tranche" shall mean the collective reference to Eurocurrency
Loans 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).
"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.
"Exchange Act Report" shall have the meaning assigned to such term in
Section 3.3.
"Existing $1.5 Billion Five-Year Credit Agreement" shall mean the Five-Year
Credit Agreement, dated as of March 7, 2001, as amended by Amendment No. 1
thereto, dated as of March 5, 2002, Amendment No. 2 thereto, dated as of
February 28, 2003, Amendment No. 3 thereto, dated as of February 19, 2004, and
Amendment No. 4 thereto, dated as of May 12, 2005, among Viacom, Viacom
International, each subsidiary borrower party thereto, the lenders named
therein, JPMorgan Chase Bank, N.A. (as successor to 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, as
the same may be further amended, supplemented, restated or otherwise modified
from time to time.
"Existing $3.0 Billion Five-Year Credit Agreement" shall mean the Five-Year
Credit Agreement, dated as of February 19, 2004, as amended by Amendment No. 1
thereto, dated as of May 12, 2005, among Viacom, Viacom International, each
subsidiary borrower party thereto, the lenders named therein, JPMorgan Chase
Bank, N.A., as administrative agent, Citibank, N.A., as syndication agent, and
Bank of America, N.A., Deutsche Bank Securities, Inc. and The Bank of
Tokyo-Mitsubishi, Ltd., New York Branch, as co-documentation agents, as the same
may be further amended, supplemented, restated or otherwise modified from time
to time.
"Existing Credit Agreements" shall mean the Existing $1.5 Billion Five-Year
Credit Agreement and the Existing $3.0 Billion Five-Year Credit Agreement.
"Facility Exposure" shall mean, with respect to any Lender, the sum of (a)
the Outstanding Revolving Extensions of Credit of such Lender, (b) the aggregate
outstanding principal 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.
"Facility Fees" shall mean all fees payable pursuant to Section 2.9(a).
9
"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 and the LC Fees.
"Final Maturity Date" shall mean November 10, 2006.
"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, 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, as set forth at approximately 11:00 a.m., London time, on such date on
the Reuters World Currency Page for such Foreign Currency. In the event that
such rate does not, or ceases to, so appear on any Reuters World Currency Page,
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
the arithmetic average of the spot rates of exchange of the Administrative Agent
in the market where its foreign currency exchange operations in respect of such
Foreign Currency are then being conducted, at or about 11:00 a.m., local time,
on such date for the purchase of Dollars with such Foreign Currency for delivery
two Business 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 the 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
10
(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, the obligations of such Borrower for
borrowed money under this Agreement), (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (iii) all
obligations of such Person to pay the deferred purchase price of Property or
services, except as provided below, (iv) all obligations of such Person as
lessee under 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 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.
"Indemnified Person" shall have the meaning assigned to such term in
Section 9.5(b).
"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 Credit 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
11
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 each Lender) or 1, 2, 3 or 6 months or
(subject to the prior consent of each Lender) 9 or 12 months thereafter, as the
relevant Borrower may elect, and (b) as to any Absolute Rate Loan, the period
commencing on the date of such Loan and ending on the date specified in the
Competitive Bids in which the offer to make such Absolute Rate Loan was
extended; 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);
provided, further, with respect to any Designated Letter of Credit, the term
"Issuing Lender" shall include 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 ▇.▇. ▇▇▇▇▇▇ Securities Inc., a New York
corporation, and Citigroup Global Markets Inc., a New York corporation.
"JPMorgan Chase" shall have the meaning assigned to such term in the
preamble to this Agreement.
"LC Disbursement" shall mean any payment or disbursement made by an Issuing
Lender under or pursuant to a Letter of Credit.
12
"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 to 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.
"Letter of Credit Sublimit" shall mean, at any time, the excess of (a)
$750,000,000 over (b) the "Aggregate LC Exposure" (as defined in the Existing
$3.0 Billion Five-Year Credit Agreement) under the Existing $3.0 Billion
Five-Year Credit Agreement at such time.
"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
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.
"Losses" shall have the meaning assigned to such term in Section 9.5(b).
"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.
"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
13
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, excluding any
effects which may result from non-cash charges arising from SFAS No. 142, SFAS
No. 144 and/or SFAS No. 123r, as applicable, issued by the Financial Accounting
Standards Board.
"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. or any successor
thereto.
"Multi-Currency" shall mean Euros, Sterling and Yen.
"Multi-Currency Revolving Loans" shall mean each Eurocurrency Revolving
Credit Loan denominated in any Multi-Currency.
"Multi-Currency Sublimit" shall mean with respect to (i) Euros,
$500,000,000, (ii) Sterling, $500,000,000 and (iii) Yen, $300,000,000, as the
sublimit may be decreased from time to time in accordance with Section 2.13.
"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.
"Non-Consenting Lender" shall have the meaning assigned to such term in
Section 2.21(b).
"Non-Financial Letter of Credit" shall mean any Letter of Credit that is
not a Financial Letter of Credit.
14
"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 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".
"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 JPMorgan Chase, Citibank N.A. and Bank of
America, N.A.
"Register" shall have the meaning assigned to such term in Section 9.4(d).
15
"Regulation D" shall mean Regulation D of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Required Lenders" shall mean, at any time, Lenders whose respective Total
Facility Percentages aggregate 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 Credit Borrowing Request" shall mean a request made pursuant to
Section 2.4 in the form of Exhibit B-4.
"Revolving Credit Loans" shall mean the revolving loans made by the Lenders
to any Borrower pursuant to Section 2.4. Each Revolving Credit Loan shall be a
Eurocurrency Loan or an ABR Loan.
"Revolving Credit Maturity Date" shall mean the earlier to occur of (i) the
Final Maturity Date or (ii) the first date on which Viacom consummates the
Viacom Separation Event.
"Revolving Credit Percentage" of any Lender at any time shall mean the
percentage of the aggregate Commitments (or, following any termination of all
the Commitments, the Commitments most recently in effect) represented by such
Lender's Commitment (or, following any such termination, the Commitment of such
Lender most recently in effect).
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"SEC" shall mean the Securities and Exchange Commission.
"SFAS" shall have the meaning assigned to such term in Section 1.2(b).
"Sole Bookrunner" shall mean ▇.▇. ▇▇▇▇▇▇ Securities Inc., a New York
corporation.
"SPC" shall have the meaning specified in Section 9.4(i).
"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.
16
"Spot Rate" shall mean, at any date, the Administrative Agent's or
applicable 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, 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. No Subsidiary of Viacom incorporated in
Canada or any province or territory thereof may be a Subsidiary Borrower
hereunder.
"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, 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, 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.
17
"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.
"Swingline Lender" shall mean any 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).
"Total Commitment" shall mean at any time the aggregate amount of the
Commitments in effect at such time.
"Total Facility Exposure" shall mean at any time the aggregate amount of
the Facility Exposures at such time.
"Total Facility Percentage" shall mean, as to any Lender at any time, the
quotient (expressed as a percentage) of (a) such Lender's Commitment (or (x) for
the purposes of acceleration of the Loans pursuant to clause (II) of Article VI
or (y) if the Commitments have terminated, such Lender's Facility Exposure) and
(b) the aggregate of all Lenders' Commitments (or (x) for the purposes of
acceleration of the Loans pursuant to clause (II) of Article VI or (y) if the
Commitments have terminated, the Total Facility Exposure).
"Total Multi-Currency Sublimit" shall mean $1,000,000,000, as such sublimit
may be decreased from time to time in accordance with Section 2.13.
"Total Specified Currency Availability" shall mean with respect to
Multi-Currency Revolving Loans, $1,000,000,000 (as 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.
18
"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).
"U.S. Person" shall mean a citizen, national or resident of the United
States of America, or an entity organized in or under the laws of the United
States of America.
"Viacom" shall 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 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.
"Viacom Separation Event" means the consummation of the transaction
contemplated by the press release issued by Viacom on March 16, 2005 (contained
in Viacom's Current Report on Form 8-K furnished to the SEC on March 17, 2005),
as the description of such transaction is supplemented by the press release
issued by Viacom on April 19, 2005 (contained in Viacom's Current Report on Form
8-K furnished to the SEC on April 19, 2005).
"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.
19
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, after March 7, 2001, 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 have
adopted Statement of Position 00-2, "Accounting by Producers or Distributors of
Films" effective as from January 1, 2000; Statement of Financial Accounting
Standards ("SFAS") No. 142, "Goodwill and Other Intangible Assets" effective as
from January 1, 2002; SFAS No. 143, "Accounting for Asset Retirement
Obligations" effective as from January 1, 2003; SFAS No. 144, "Accounting for
the Impairment or Disposal of Long-Lived Assets" effective as from January 1,
2002; and SFAS No. 145, "Rescission of FASB Statements No. 4, 44 and 64,
Amendments to FASB Statement No. 13 and Technical Corrections" effective as from
January 1, 2003.
(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
20
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.
ARTICLE II
THE CREDITS
SECTION 2.1. Commitments. Subject to the terms and conditions hereof and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make Revolving Credit Loans to Viacom or
any Subsidiary Borrower, at any time and from time to time on and after the
Closing Date and until the earlier of (a) the Business Day immediately preceding
the Revolving Credit Maturity Date and (b) the termination of the Commitment of
such Lender, in an aggregate principal amount at any time outstanding not to
exceed such Lender's Commitment. Each Borrower may borrow, prepay and reborrow
21
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.
SECTION 2.2. Revolving Credit Loans; Competitive Loans. (a) Each Revolving
Credit Loan shall be made to the relevant Borrower by the Lenders ratably in
accordance with their respective Commitments, 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 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
Revolving Credit Loans denominated in Dollars, $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 Revolving Credit Loans,
$25,000,000 or an integral multiple of $5,000,000 in excess thereof (or (A) in
the case of Revolving Credit Loans, an aggregate principal amount equal to the
remaining balance of the available Total Commitment or, if less, (B) with
respect to Multi-Currency Revolving Loans, the lesser of (1) the Specified
Currency Availability with respect to such currency and (2) the Total Specified
Currency Availability).
(b) Each Lender shall make each Loan (other than a Swingline Loan, as to
which this Section 2.2 shall not apply, and a Multi-Currency Revolving Loan) 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 Lender shall make each
Multi-Currency Revolving Loan to be made by it on the proposed date thereof by
wire transfer of immediately available funds to the Administrative Agent at its
offices at ▇.▇. ▇▇▇▇▇▇ Europe Limited, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, not later than (i) in the case of any Multi-Currency
Revolving Loan denominated in Euros or Sterling, 3:00 p.m., London time, or (ii)
in the case of any Multi-Currency Revolving Loan denominated in Yen, 3:00 p.m.,
Tokyo 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.
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
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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 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 Business 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
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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, 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 Business 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 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.
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(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 than 11:00 a.m. London time, in immediately available
funds, in London to the Administrative Agent as notified by the Administrative
Agent by one Business Day's 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 Borrowing Procedure. In order to request a
Revolving Credit Loan, the relevant Borrower shall hand deliver or telecopy to
the Administrative Agent a Revolving Credit Borrowing Request in the form of
Exhibit B-4 (a) in the case of a Eurocurrency Revolving Credit Loan denominated
in Dollars, 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 Credit Loan, not later than 11:00 a.m.,
New York City time, on the day of a proposed borrowing. Such notice shall be
irrevocable and shall in each case specify (i) whether the Revolving Credit Loan
then being requested is to be a Eurocurrency Revolving Credit Loan or an ABR
Revolving Credit Loan, (ii) the date of such Revolving Credit Loan (which shall
be a Business Day) and the amount thereof; (iii) in the case of a Eurocurrency
Revolving Credit 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 Lenders of
any notice given pursuant to this Section 2.4 and of each Lender's portion of
the requested Loan.
SECTION 2.5. Repayment of Loans. Each Borrower shall repay all outstanding
Revolving Credit Loans and ABR Swingline Loans made to it, in each case on the
Revolving Credit Maturity Date (or such earlier date on which the Commitments
shall terminate in accordance herewith). Each Borrower shall repay Quoted
Swingline Loans and Competitive
25
Loans made to it, in each case on the Maturity Date applicable thereto. Each
Loan shall bear interest from and including the date thereof on the outstanding
principal balance thereof as set forth in Section 2.10.
SECTION 2.6. Swingline Loans. (a) Subject to the terms and conditions
hereof and relying upon the representations and warranties herein set forth,
each Swingline Lender agrees, severally and not jointly, at any time and from
time to time on and after the Closing Date and until the earlier of the Business
Day immediately preceding the Revolving Credit Maturity Date and the termination
of the Swingline Commitment of such Swingline Lender, (i) to make available to
any Swingline Borrower Swingline Loans ("Quoted Swingline Loans") on the basis
of quoted interest rates (each, a "Quoted Swingline Rate") furnished by such
Swingline Lender from time to time in its discretion to such Swingline Borrower
(through the Administrative Agent) and accepted by such Swingline Borrower in
its discretion and (ii) to make Swingline Loans ("ABR Swingline Loans") to any
Swingline Borrower bearing interest at a rate equal to the Alternate Base Rate
in an aggregate principal amount (in the case of this clause (ii)) not to exceed
such Swingline Lender's Swingline Commitment; provided, that after giving effect
to each Swingline Loan, the Total Facility Exposure shall not exceed the Total
Commitment then in effect. 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
26
of any notice received from any Swingline Borrower pursuant to this paragraph
(b). In the event that a Swingline Borrower accepts a Quoted Swingline Rate in
respect of a proposed Quoted Swingline Loan, it shall notify the Administrative
Agent (which shall in turn notify the relevant Swingline Lender) of such
acceptance no later than 2:30 p.m., New York City time, on the relevant
borrowing date.
(c) In the event that any ABR Swingline Loan shall be outstanding for more
than five Business Days, the Administrative Agent shall, on behalf of the
relevant Swingline Borrower (which hereby irrevocably directs and authorizes the
Administrative Agent to act on its behalf), request each Lender, including the
Swingline Lenders, to make an ABR Revolving Credit Loan in an amount equal to
such Lender's Revolving Credit Percentage of the principal amount of such ABR
Swingline Loan. 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 Lender, 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.
27
(f) Notwithstanding anything to the contrary in this Agreement, each
Lender's obligation to make the Revolving Credit Loans referred to in Section
2.6(c) and to purchase and fund participating interests pursuant to Section
2.6(d) shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender or any Swingline Borrower
may have against any Swingline Lender, any Swingline Borrower or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of a
Default or an Event of Default (other than an Event of Default described in
Article VI, paragraph (f) or (g), in the case of each Lender's obligation to
make Revolving Credit Loans pursuant to Section 2.6(c)) 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) in 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
28
Loans shall be allocated, as between the Swingline Lenders, pro rata in
accordance with their respective Swingline Percentages.
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 earliest to occur of (i) the fifth Business Day preceding
the Final Maturity Date, (ii) the first date on which Viacom consummates the
Viacom Separation Event and (iii) the termination of the Commitments in
accordance with the terms hereof, to issue and deliver or to extend the expiry
of Letters of Credit for the account of any Borrower in an aggregate outstanding
undrawn amount which does not exceed the maximum amount specified in the
applicable Issuing Lender Agreement; provided, that (A) in no event shall the
Aggregate LC Exposure exceed the Letter of Credit Sublimit at any time and (B)
after giving effect to each issuance of a Letter of Credit, the Total Facility
Exposure shall not exceed the Total Commitment then in effect. 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 Final Maturity Date; provided, however, that in
the event that the Revolving Credit Maturity Date occurs prior to the Final
Maturity Date, Viacom shall, on or before the Revolving Credit Maturity Date,
either (i) deposit cash with the Administrative Agent or the applicable Issuing
Lenders, in an amount equal to the Aggregate LC Exposure in respect of all
Letters of Credit outstanding on the Revolving Credit Maturity Date, as
collateral security for the repayment of any future LC Disbursements under such
Letters of Credit, (ii) cause all Letters of Credit outstanding on the Revolving
Credit Maturity Date to become "Designated Letters of Credit" (as defined in the
Existing $3.0 Billion Five-Year Credit Agreement) under the Existing $3.0
Billion Five-Year Credit Agreement, or (iii) provide to the applicable Issuing
Lenders one or more backing letters of credit having an aggregate stated amount
equal to the Aggregate LC Exposure in respect of all Letters of Credit
outstanding on the Revolving Credit Maturity Date, which letters of credit shall
be issued by one or more financial institutions acceptable to such Issuing
Lenders and shall be in form and substance satisfactory to such Issuing Lenders
(it being understood and agreed that the selection as between clause (i), (ii)
or (iii) above shall be made by Viacom in its sole discretion). 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.
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(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.
(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.
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(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 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:
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(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 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 a 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 Facility
Exposure shall exceed the Total Commitment then in effect, then, within three
Business Days after the date of such notice,
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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 (except as otherwise set forth in Section 2.22), 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 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 convert Eurocurrency Revolving Credit Loans
denominated in Dollars (or, subject to Section 2.10(f), a portion thereof) to
ABR Revolving Credit Loans on the last day of an Interest Period with respect
thereto by giving the Administrative Agent prior irrevocable notice of such
election. The relevant Borrower may elect from time to time to convert ABR
Revolving Credit Loans (subject to Section 2.10(f)) to Eurocurrency Revolving
Credit Loans denominated in Dollars by giving the Administrative Agent at least
three Business Days' prior irrevocable notice of such election. Any such notice
of conversion to Eurocurrency Revolving Credit Loans shall specify the length of
the initial Interest Period therefor. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. All or any part
of outstanding Eurocurrency Revolving Credit Loans and ABR Revolving Credit
Loans may be converted as provided herein; provided, that no Revolving Credit
Loan may be converted into a Eurocurrency Revolving Credit Loan when any Event
of Default has occurred and is continuing and the Administrative Agent has or
the Required Lenders have determined in its or their sole discretion not to
permit such a conversion.
(b) Any Eurocurrency Revolving Credit Loans (or, subject to Section
2.10(f), a portion thereof) may be continued as such upon the expiration of the
then current Interest Period with respect thereto by the relevant Borrower
giving irrevocable notice to the Administrative Agent, not less than three
Business Days prior to the last day of the then current Interest Period with
respect thereto, of the length of the next Interest Period to be applicable to
such Revolving Credit Loans; provided, that no Eurocurrency Revolving Credit
Loan may be continued as such when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit such a continuation;
and provided, further, that if the relevant Borrower shall fail to give any
required notice as described above in this paragraph or if such continuation is
not permitted pursuant to the preceding proviso such Eurocurrency Revolving
Credit Loans shall be
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automatically converted to ABR Revolving Credit Loans on the last day of such
then expiring Interest Period (in the case of Multi-Currency Revolving Loans,
such Loans shall be converted to Dollars at the Foreign Exchange Rate on such
date before being converted to ABR Revolving Credit Loans). Upon receipt of any
notice from a Borrower pursuant to this Section 2.8(b), the Administrative Agent
shall promptly notify each Lender thereof. The Administrative Agent shall
promptly notify the applicable Borrower upon the determination in accordance
with this Section 2.8(b), by it or the Required Lenders, not to permit such a
continuation.
SECTION 2.9. Fees. (a) Viacom agrees to pay to the Administrative Agent for
the account of each 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 Commitment
(whether used or unused); provided that, if such Lender continues to have any
Facility Exposure after its Commitment terminates, then such Facility Fee shall
continue to accrue on the daily amount of such Lender's Facility Exposure from
and including the date on which its Commitment terminates to but excluding the
date on which such Lender ceases to have any Facility Exposure. 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 (commencing on the first of such dates
to occur after the Closing Date), on the Revolving Credit Maturity Date or such
earlier date on which the Commitments shall be terminated, and on the date
(after termination of the Commitments) on which each Lender ceases to have any
Facility Exposure.
(b) Viacom agrees to pay each Lender, through the Administrative Agent, on
the 15th day of each April, July, October and January and on the Final Maturity
Date or the date on which the Commitment of such Lender shall be terminated as
provided herein and all Letters of Credit issued hereunder shall have expired, a
letter of credit fee (an "LC Fee") computed at a per annum rate equal to the
Applicable LC Fee Rate on such Lender's Revolving Credit Percentage of the
average daily undrawn amount of the Financial Letters of Credit or Non-Financial
Letters of Credit, as the case may be, outstanding during the preceding fiscal
quarter (or shorter period commencing with the Closing Date or ending with the
Final Maturity Date or the date on which the Commitment of such Lender shall
have been terminated and all Letters of Credit issued hereunder shall have
expired). All LC Fees shall be computed on the basis of the actual number of
days elapsed in a year of 360 days.
(c) 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 with respect to each Letter of
Credit issued by such Issuing Lender payable on the 15th day of each April,
July, October and January 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.
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(e) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the relevant Lenders or to the Issuing Lenders. Once paid, none of the
Fees shall be refundable under any circumstances (other than corrections of
errors in payment).
SECTION 2.10. Interest on Loans; 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 Credit
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 or minus (as the case may be) 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
each Lender 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.
(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 Credit Loans hereunder and all selections of Interest
Periods hereunder in respect of Eurocurrency Revolving Credit Loans shall be in
such amounts and shall be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of the Eurocurrency Revolving
Credit Loans 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.
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(g) If no election as to the Type of Revolving Credit Loan is specified in
any notice of borrowing with respect thereto, then the requested Loan shall be
an ABR Loan, unless such request is for a Revolving Credit Loan denominated in a
Multi-Currency. If no Interest Period with respect to a Eurocurrency Revolving
Credit Loan is specified in any notice of borrowing, conversion or continuation,
then the relevant Borrower shall be deemed to have selected an Interest Period
of one month's duration. 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. (a) If all or a portion of the principal
amount of any Loan shall not be paid when due (whether at the stated maturity,
by acceleration or otherwise), all outstanding Loans (whether or not overdue)
shall bear interest at a rate per annum which is equal to the rate that would
otherwise be applicable thereto pursuant to the provisions of Section 2.10 plus
2% and (b) if all or a portion of any LC Disbursement, any interest payable on
any Loan or LC Disbursement or any Fee or other amount payable hereunder shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the rate otherwise applicable to ABR Loans pursuant to Section 2.10(b) plus 2%,
in each case, with respect to clauses (a) and (b) above, from the date of such
non-payment until such amount is paid in full (as well after as before
judgment).
SECTION 2.12. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a 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 (ii) the Required Lenders shall have
determined and shall have notified the Administrative Agent that the
Eurocurrency Rate determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining Eurocurrency Loans during
such Interest Period, the Administrative Agent shall, as soon as practicable
thereafter, give written or telecopy notice of such determination to the
Borrowers and the Lenders. In the event of any such determination, until the
Administrative Agent shall have advised the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any request by a
Borrower for a 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 Credit Loan denominated in Dollars pursuant to Section 2.4 to be made
after such determination shall be deemed to be a request for an ABR Loan, (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 Credit Loan pursuant to Section 2.8 to be made after such
determination shall have no force and effect (in the case of a requested
conversion) or shall be deemed to be a request for a conversion into an ABR Loan
(in the case of a requested continuation); 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
36
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 Lenders hereunder shall be conclusive
absent manifest error.
SECTION 2.13. Termination and Reduction of Commitments. (a) Upon at least
three Business Days' prior irrevocable written or telecopy notice to the
Administrative Agent, Viacom may at any time in whole permanently terminate, or
from time to time in part permanently reduce, the Commitments; provided,
however, that (i) each partial reduction of the Commitments shall be in a
minimum principal amount of $10,000,000 and in integral multiples of $1,000,000
in excess thereof and (ii) no such termination or reduction shall be made if,
after giving effect thereto and to any prepayments of the Loans made on the
effective date thereof, (x) the Outstanding Revolving Extensions of Credit of
any Lender would exceed such Lender's Commitment then in effect or (y) the Total
Facility Exposure would exceed the Total Commitment then in effect. The
Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.13(a).
(b) Except as otherwise provided in Section 2.21, each reduction in the
Commitments hereunder shall be made ratably among the Lenders in accordance with
their respective Commitments. Viacom agrees to pay to the Administrative Agent
for the account of the Lenders, on the date of termination or reduction of the
Commitments, the Facility Fees on the amount of the Commitments so terminated or
reduced accrued through the date of such termination or reduction.
(c) Upon a decrease, pursuant to Section 2.13(a) or (b), in the
Commitments, Viacom may decrease the Total Multi-Currency Sublimit and/or the
Multi-Currency Sublimit with respect to any or all Multi-Currencies, in each
case 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, (i) 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 or (ii) the Total Multi-Currency
Sublimit would be less than the outstanding principal amount of Multi-Currency
Revolving Loans at such time.
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 Credit Loans, and (ii) before 10:00 a.m., New York City time, one
Business Day prior to prepayment, in the case of ABR Revolving Credit Loans.
Such notice shall specify the date and amount of prepayment and whether the
prepayment is of Eurocurrency Revolving Credit Loans, ABR Revolving Credit Loans
or a combination thereof, and, if of a combination thereof, the amount allocable
to each. If a Eurocurrency Revolving Credit Loan is prepaid on any day other
than the last day of the Interest Period applicable thereto, the relevant
Borrower shall also pay any amounts owing pursuant to Section 2.16. Upon receipt
of any such notice the Administrative Agent shall promptly notify each Lender
thereof. If any
37
such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with (except in the case of ABR
Revolving Credit Loans) accrued interest to such date 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 of the
principal of or interest on any Eurocurrency Loan or Absolute Rate Loan made by
such Lender (other than changes in respect of taxes imposed on the overall net
income of such Lender by the jurisdiction in which such Lender has its principal
office (or in which it holds any Eurocurrency Loan or Absolute Rate Loan) or by
any political subdivision or taxing authority therein and other than taxes that
would not have been imposed but for the failure of such Lender to comply with
applicable certification, information, documentation or other reporting
requirements), or shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of or deposits with or for the
account of such Lender, or shall impose on such Lender or the London interbank
market any other condition affecting this Agreement or any Eurocurrency Loan or
Absolute Rate Loan made by such Lender, and the result of any of the foregoing
shall be to increase the cost to such Lender of making or maintaining any
Eurocurrency Loan or Absolute Rate Loan or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal, interest
or otherwise) in respect of any Eurocurrency Loan or Absolute Rate Loan by an
amount deemed by such Lender to be material, then the relevant Borrower agrees
to pay to such Lender as provided in paragraph (c) below such additional amount
or amounts as will compensate such Lender for such additional costs incurred or
reduction suffered. Notwithstanding the foregoing, no Lender shall be entitled
to request compensation under this paragraph with respect to any Competitive
Loan if the change giving rise to such request shall, or in good faith should,
have been taken into account in formulating the Competitive Bid pursuant to
which such Competitive Loan shall have been made.
(b) If any Lender or any Issuing Lender shall have determined that the
adoption after the Closing Date hereof of any law, rule, regulation or guideline
regarding capital adequacy, or any change in any law, rule, regulation or
guideline regarding capital adequacy or in the interpretation or administration
of any of the foregoing by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender (or any lending office of such Lender) or Issuing
Lender or any Lender's or Issuing Lender's holding company with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Lender's or Issuing Lender's
capital or on the capital of such Lender's or Issuing Lender's holding company,
if any, as a consequence of this Agreement or the Loans made by such Lender or
the LC Exposure of such Lender or Letters of Credit issued by such Issuing
Lender pursuant hereto to a level below that which such Lender or Issuing Lender
or such Lender's or Issuing Lender's holding company could have achieved but for
such applicability, adoption, change or compliance
38
(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 the relevant Borrower agrees to pay to such
Lender or Issuing Lender as provided in paragraph (c) below such additional
amount or amounts as will compensate such Lender or Issuing Lender or such
Lender's or Issuing Lender's holding company for any such reduction suffered.
(c) A certificate of each Lender or Issuing Lender setting forth such
amount or amounts as shall be necessary to compensate such Lender or Issuing
Lender as specified in paragraph (a) or (b) above, as the case may be, and the
basis therefor in reasonable detail shall be delivered to the relevant Borrower
and shall be conclusive absent manifest error. The relevant Borrower shall pay
each Lender or Issuing Lender the amount shown as due on any such certificate
within 30 days after its receipt of the same. Upon the receipt of any such
certificate, the relevant Borrower shall be entitled, in its sole discretion, if
any requested Loan has not been made, to cancel its acceptance of the relevant
Competitive Bids or to cancel the Competitive Bid Request relating thereto,
subject to Section 2.16.
(d) Except as provided in this paragraph, failure on the part of any Lender
or Issuing Lender to demand compensation for any increased costs or reduction in
amounts received or receivable or reduction in return on capital with respect to
any period shall not constitute a waiver of such Lender's or Issuing 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 Issuing Lender
regardless of any possible contention of the invalidity or inapplicability of
the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed so long as it shall be customary for Lenders or
Issuing Lenders affected thereby to comply therewith. No Lender or Issuing
Lender shall be entitled to compensation under this Section 2.15 for any costs
incurred or reductions suffered with respect to any date unless it shall have
notified the relevant Borrower that it will demand compensation for such costs
or reductions under paragraph (c) above not more than 90 days after the later of
(i) such date and (ii) the date on which it shall have become aware of such
costs or reductions. Notwithstanding any other provision of this Section 2.15,
no Lender or Issuing 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 Issuing Lender (as the case may be) 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 Issuing Lender pursuant to this Section 2.15 for any cost and such Lender or
Issuing Lender (as the case may be) shall subsequently receive a refund in
respect thereof, such Lender or Issuing Lender (as the case may be) shall so
notify such Borrower and, upon its request, will pay to such Borrower the
portion of such refund which such Lender or Issuing Lender (as the case may be)
shall determine in good faith to be allocable to the cost so reimbursed. The
covenants contained in this Section 2.15 shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
SECTION 2.16. Indemnity. Each Borrower agrees to indemnify each Lender
against any loss or expense described below which such Lender may sustain or
incur as a consequence of (a) any failure by such Borrower to fulfill on the
date of any borrowing hereunder the applicable conditions set forth in Article
IV, (b) any failure by such Borrower to
39
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 or Absolute Rate Loan made to
such Borrower required by any other provision of this Agreement or otherwise
made or deemed made, whatever the circumstances may be that give rise to such
payment, prepayment or conversion, or any transfer of any such Loan pursuant to
Section 2.21 or 9.4(b), on a date other than the last day of the Interest Period
applicable thereto, or (d) if any breakage is incurred, any failure by a
Borrower to prepay a Eurocurrency Loan on the date specified in a notice of
prepayment; provided, that any request for indemnification made by any Lender to
any Borrower pursuant hereto shall be accompanied by such Lender's calculation
of such amount to be indemnified. The loss or expense for which such Lender
shall be indemnified under this Section 2.16 shall be equal to the excess, if
any, as reasonably determined by such Lender, of (i) its cost of obtaining the
funds for the Loan being paid, prepaid, converted or not borrowed, continued,
prepaid or 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 such Lender) that would be realized by such 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
margin or spread over its cost of obtaining funds as described above. A
certificate of any Lender setting forth any amount or amounts which such Lender
is entitled to receive pursuant to this Section 2.16 (with calculations in
reasonable detail) shall be delivered to the relevant Borrower and shall be
conclusive absent manifest error. This covenant shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
SECTION 2.17. Pro Rata Treatment; Funding Matters; Evidence of Debt. (a)
Except as required under Section 2.21, each payment or prepayment of principal
of any Revolving Credit Loan, each payment of interest on the Revolving Credit
Loans, each payment of LC Fees, each payment of the Facility Fees, and each
reduction of the Commitments, shall be allocated pro rata among the Lenders in
accordance with their respective Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective principal amounts
of their outstanding Revolving Credit Loans). Each Lender agrees that in
computing such Lender's portion of any Loan to be made hereunder, the
Administrative Agent may, in its discretion, round such Lender's percentage of
such Loan to the next higher or lower whole Dollar amount.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the relevant borrowing date that such Lender will not make
available to the Administrative Agent such Lender's portion of a borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such borrowing in accordance with
this Agreement and the Administrative Agent may, in reliance upon such
assumption, make available to the relevant Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have made such portion
available to the Administrative Agent, each of such Lender and the relevant
Borrower agrees to
40
repay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to such Borrower until the date such amount is repaid to the
Administrative Agent at (i) in the case of such Borrower, the interest rate
applicable at the time to the relevant Loan and (ii) in the case of such Lender,
the Federal Funds Effective Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such borrowing for the purposes of this Agreement;
provided, that such repayment shall not release such Lender from any liability
it may have to such Borrower for the failure to make such Loan at the time
required herein.
(c) The failure of any Lender to make any Loan shall not in itself relieve
any other Lender of its obligation to lend hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any other Lender
to make any Loan required to be made by such other Lender).
(d) Each Lender may at its option make any 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 shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness to such Lender resulting from
each Loan made by it from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under this Agreement.
The Administrative Agent shall maintain accounts in which it will record (i) the
amount of each Loan made hereunder, the Borrower with respect to each Loan, the
Type of each Loan and each Interest Period, if any, applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable
from each Borrower to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder from any Borrower and each
Lender's share thereof. The entries made in the accounts maintained pursuant to
this paragraph (e) shall, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner affect the
obligations of any Borrower to repay the Loans in accordance with their terms.
(f) In order to expedite the transactions contemplated by this Agreement,
each Subsidiary Borrower shall be deemed, by its execution and delivery of a
Subsidiary Borrower Request, to have appointed Viacom to act as agent on behalf
of such Subsidiary Borrower for the purpose of (i) giving any notices
contemplated to be given by such Subsidiary Borrower pursuant to this Agreement,
including, without limitation, borrowing notices, prepayment notices,
continuation notices, conversion notices, competitive bid requests and
competitive bid acceptances or rejections and (ii) paying on behalf of such
Subsidiary Borrower any Subsidiary Borrower Obligations owing by such Subsidiary
Borrower; provided, that each Subsidiary Borrower shall retain the right, in its
discretion, to directly give any or all of such notices or make any or all of
such payments.
41
(g) The Administrative Agent shall promptly notify the Lenders upon receipt
of any Subsidiary Borrower Designation and Subsidiary Borrower Request. The
Administrative Agent shall promptly notify the Swingline Lenders upon receipt of
any designation of a Subsidiary Borrower as a Swingline Borrower.
SECTION 2.18. Sharing of Setoffs. Except to the extent that this Agreement
provides for payments to be allocated to Revolving Credit Loans, Swingline Loans
or Competitive Loans, as the case may be, each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
any Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means (other than
pursuant to any provision of this Agreement), obtain payment (voluntary or
involuntary) in respect of any category of its Loans or such Lender's Revolving
Credit Percentage of any LC Disbursement as a result of which the unpaid
principal portion of such Loans or the unpaid portion of such Lender's Revolving
Credit Percentage of the LC Disbursements shall be proportionately less than the
unpaid principal portion of such Loans or the unpaid portion of the Revolving
Credit Percentage of the LC Disbursements of any other Lender, it shall be
deemed simultaneously to have purchased from such other Lender at face value,
and shall promptly pay to such other Lender the purchase price for, a
participation in such Loans or the Revolving Credit Percentage of the LC
Disbursements of such other Lender, so that the aggregate unpaid principal
amount of such Loans and participations in such Loans held by each Lender or the
Revolving Credit Percentage of LC Disbursements and participations in LC
Disbursements held by each Lender shall be in the same proportion to the
aggregate unpaid principal amount of all such Loans or LC Disbursements then
outstanding as the principal amount of such Loans or the Revolving Credit
Percentage of LC Disbursements of each Lender prior to such exercise of banker's
lien, setoff or counterclaim or other event was to the principal amount of all
such Loans or LC Disbursements outstanding prior to such exercise of banker's
lien, setoff or counterclaim or other event; provided, however, that, if any
such purchase or purchases or adjustments shall be made pursuant to this Section
2.18 and the payment giving rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be rescinded to the extent of such
recovery and the purchase price or prices or adjustment restored without
interest, 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.
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
JPMorgan Chase Bank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in
immediately available funds. Notwithstanding the foregoing, each Borrower shall
make each payment with respect to any Loan denominated in any Foreign
42
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 Foreign
Currency to the Administrative Agent at its offices at ▇.▇. ▇▇▇▇▇▇ Europe
Limited, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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.
(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.
43
(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 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
44
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 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document requested by any Borrower or to change the jurisdiction of its
applicable lending office if the making of such a filing or change would avoid
the need for or reduce the amount of any such additional amounts which may
thereafter accrue and would not, in the sole determination of such Lender (or
Transferee), be otherwise disadvantageous to such Lender (or Transferee).
(b) In the event that (x) any Lender shall have delivered a notice or
certificate pursuant to Section 2.15, (y) any Borrower shall be required to make
additional payments to any Lender under Section 2.20, or (z) any Lender (a
"Non-Consenting Lender") shall withhold its consent to any amendment described
in clause (i) or (ii) of Section 9.8(b) as to which consents have been obtained
from Lenders having Total Facility Percentages aggregating at least 90%, Viacom
shall have the right, at its own expense, upon notice to such Lender (or
Lenders) and the Administrative Agent, (i) to terminate the Commitments of such
Lender (except in the case of clause (z) above) or (ii) to require such Lender
(or, in the case of clause (z) above, each Non-Consenting Lender) to transfer
and assign without recourse (in accordance with and subject to the restrictions
contained in Section 9.4) all its interests, rights and obligations under this
Agreement to one or more other financial institutions acceptable to 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) the
Borrowers or the assignee (or assignees), as the case may be, shall pay to each
affected Lender in immediately available funds on the date of such termination
or assignment the principal of and interest accrued to the date of payment on
the Loans made by it hereunder and all other amounts accrued for its account or
45
owed to it hereunder and (z) Viacom may not terminate Commitments representing
more than 10% of the original aggregate 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 applicable Borrowers and the
Lenders of the Dollar equivalent so determined by it. Each such determination
shall be based on the Spot Rate (i) (A) on the date of the related Competitive
Bid Request, for purposes of the initial determination of such Competitive Bid
Loan, and (B) on the date of the related Revolving Credit Borrowing Request, for
purposes of the initial determination of such Multi-Currency Revolving Loan, and
(ii) on the fourth Business Day prior to the date on which such Dollar
equivalent is to be determined, for purposes of subsequent determinations.
(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
second Business Day prior to the related drawing thereunder, in the case of any
determination as to a drawing thereunder.
(c) If after giving effect to any such determination of a Dollar equivalent
with respect to Competitive Bid Loans or 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, (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 collateralize) 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
after giving effect to any such determination of a Dollar equivalent 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, cause to be reduced (or, at the
46
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 of a Competitive Bid Loan or a Multi-Currency
Revolving Loan 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,
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.
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 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 on any Business Day preceding that on which the final
judgment is given. The obligations of each Borrower in respect of any sum due to
any 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 following receipt by such Lender or the
Administrative Agent, as the case may be, of any sum adjudged to be so due in
such other currency such 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 or the Administrative Agent,
as the case may be, in the specified currency, the applicable Borrower agrees,
to the fullest extent that it may effectively do so, as a separate obligation
and notwithstanding any such judgment, to indemnify such 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 or the Administrative Agent, as the case may be, in the specified
currency and (ii) any amounts shared with other Lenders as a result of
allocations of such excess as a disproportionate payment to such Lender as
compared to such Lender's Total Facility Percentage, such Lender or the
Administrative Agent, as the case may be, agrees to remit such excess to the
applicable Borrower.
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:
47
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 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, 2004, and the related
consolidated statements of income and cash flows of 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, the Annual Report of Viacom on
Form 10-K for the year ended December 31, 2004 and Quarterly Reports on Form
10-Q and Reports on Form 8-K of Viacom filed with or furnished to the SEC
subsequent to December 31, 2004, but on or before April 20, 2005, in each case,
as amended or supplemented on or before April 20, 2005.
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
48
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.
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. 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.
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.
49
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) 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.
(c) 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.
(d) Amendments to Existing Credit Agreements. All conditions to
effectiveness specified in Section 2(b) of each of Amendment No. 4 to the
Existing $1.5 Billion Five-Year Credit Agreement and Amendment No. 1 to the
Existing $3.0 Billion Five-Year Credit Agreement, the forms of which are
attached hereto as Exhibit G and Exhibit H, respectively, shall have been
satisfied.
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 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.
50
SECTION 4.3. All Credit Events. The obligation of each Lender to make each
Loan, and the obligation of each Issuing Lender to issue each Letter of Credit,
are subject to the satisfaction of the following conditions:
(a) The Administrative Agent shall have received a request for, or notice
of, such Credit Event if and as required by Section 2.3, 2.4, 2.6 or 2.7, as
applicable;
(b) Each of the representations and warranties made by 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, (i) with respect to Revolving
Credit Loans, (A) the Outstanding Revolving Extensions of Credit of each Lender
shall not exceed such Lender's Commitment then in effect and (B) the Total
Facility Exposure shall not exceed the Total Commitment then in effect, and (ii)
with respect to Multi-Currency Revolving Loans, (A) the outstanding
Multi-Currency Revolving Loans in a particular Multi-Currency shall not exceed
the Multi-Currency Sublimit for such currency and (B) the aggregate outstanding
Multi-Currency Revolving Loans shall not exceed the Total Multi-Currency
Sublimit.
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
51
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;
(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;
52
(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 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 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
53
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 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
54
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) 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;
(b) 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;
(c) 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;
(d) 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
(e) 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:
55
(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);
(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 any dividend (including 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 Existing Credit Agreements;
(e) Indebtedness outstanding on the Closing Date, with such Indebtedness
outstanding as of March 31, 2005 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
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(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.
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, commercial paper backup and the repayment of bonds (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
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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
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) subject to Schedule VI(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,
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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 entry
thereof and Viacom or the relevant Material Subsidiary shall not, within said
period of 60 days, or such longer period during which execution of the same
shall have been stayed, appeal therefrom and cause the execution thereof to be
stayed during such appeal;
(i) an event or condition specified in Section 5.1(e) shall occur or exist
with respect to any Plan or Multiemployer Plan and, as a result of such event or
condition, together with all other such events or conditions, 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. 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 and Issuing Lenders all payments of principal
of and interest on the Loans and the LC Disbursements and all other amounts due
to the Lenders and the Issuing Lenders hereunder, and promptly to distribute to
each Lender and Issuing Lender its proper share of each payment so received; (b)
to give notice on behalf of each of the Lenders to the Borrowers of any Event of
Default specified in this Agreement of which the Administrative Agent has actual
knowledge acquired in connection with its agency hereunder; and (c) to
distribute to each Lender and Issuing Lender copies of all notices, financial
statements and other materials delivered by any Borrower pursuant to this
Agreement as received by the Administrative Agent.
Neither any Agent nor any of its directors, officers, employees or agents
shall be liable as such for any action taken or omitted by any of them except
for its or his own gross negligence or 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 accordance with written
instructions signed by the Required Lenders (or, when expressly required hereby,
all the Lenders) and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders and the Issuing Lenders. The Administrative Agent shall, in the
absence of knowledge to the contrary, be entitled to rely on any instrument or
document believed by it in good faith to be genuine and correct and to have been
signed or sent by the proper Person or Persons. Neither the Agents nor any of
their directors, officers, employees or agents shall have any responsibility to
any Borrower on account of the failure of or delay in performance or breach by
any Lender or Issuing Lender of any of its obligations hereunder or to any
Lender or Issuing Lender on account of the failure of or delay in performance or
breach by any other Agent, any other Lender or Issuing Lender or any Borrower of
any of their respective obligations hereunder or in connection herewith. The
Administrative Agent may execute any and all duties hereunder by or through
agents or employees and shall be entitled to rely upon the advice of legal
counsel selected by it with respect to all matters arising hereunder and shall
not be liable for any action taken or suffered in good faith by it in accordance
with the advice of such counsel.
The Lenders and the Issuing Lenders hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant
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to the provisions of this Agreement unless it shall be requested in writing to
do so by the Required Lenders.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, the Administrative Agent may resign at any time by
notifying the Lenders, the Issuing 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.
With respect to the Loans made by them and their LC Exposure hereunder, the
Agents in their individual capacity and not as Agents shall have the same rights
and powers as any other Lender and may exercise the same as though they were not
Agents, and the Agents and their affiliates may accept deposits from, lend money
to and generally engage in any kind of business with the Borrowers or any of
their respective Subsidiaries or any Affiliate thereof as if they were not
Agents.
Each Lender and Issuing Lender agrees (i) to reimburse the Administrative
Agent in the amount of its pro rata share (based on its Total Facility
Percentage or, after the date on which the Loans shall have been paid in full,
based on its Total Facility Percentage immediately prior to such date) of any
reasonable, out-of-pocket expenses incurred for the benefit of the Lenders or
the Issuing Lenders by the Administrative Agent, including reasonable counsel
fees and compensation of agents and employees paid for services rendered on
behalf of the Lenders or the Issuing Lenders, which shall not have been
reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold
harmless the Administrative Agent and any of its directors, officers, employees
or agents, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against it in its capacity as
Administrative Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by it under this Agreement, to the extent the same
shall not have been reimbursed by or on behalf of Viacom; provided, that no
Lender or Issuing Lender shall be liable to the Administrative Agent or any such
director, officer, employee or agent for any portion of such liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent or any of its directors, officers,
employees or agents.
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Each Lender and Issuing Lender acknowledges that it has, independently and
without reliance upon the Agents or any other Lender or Issuing Lender and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender and
Issuing Lender also acknowledges that it will, independently and without
reliance upon any Agent or any other Lender or Issuing Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder
or thereunder.
Neither the Co-Documentation Agents, the Syndication Agent, 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.
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(b) No Subrogation, etc. Notwithstanding any payment or payments made by
Viacom hereunder, or any setoff 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
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
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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.
(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 Foreign
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 ▇.▇. ▇▇▇▇▇▇ Europe Limited, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in the relevant Foreign Currency and in
immediately available funds.
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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 setoff 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 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.
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(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 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
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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 Foreign 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 ▇.▇. ▇▇▇▇▇▇ Europe Limited, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in the relevant Foreign Currency and 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 Treasurer (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to
General Counsel (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇):
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(b) if to Viacom International, to it c/o Viacom Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Treasurer (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with
a copy to General Counsel (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to the Administrative Agent, to it at JPMorgan Chase Bank, N.A., ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇), with a copy to (i) JPMorgan Chase Bank, N.A., Loan and Agency
Services, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇) and (ii) if such notice or other
communication relates to a Multi-Currency Revolving Loan (including any
Revolving Credit Borrowing Request for a Multi-Currency Revolving Loan), ▇.▇.
▇▇▇▇▇▇ Europe Limited, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. 011-44-207-777-2360);
(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, any Issuing Lender and any Lender may, in its discretion,
provide any notice, report or other information to 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.
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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, the Administrative Agent and each Issuing Lender 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 applicable, the Dollar equivalent thereof)
(or such lesser amount as may be agreed by the Administrative Agent) and (y) the
amount of the aggregate Commitments and/or Loans retained by any assigning
Lender (determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent) shall not be less than
$10,000,000 (or, if applicable, the Dollar equivalent thereof) (or such lesser
amount as may be agreed by the Administrative Agent), 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,
(iii) the assignor and assignee shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation
fee of $3,500 and (iv) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to Section 9.4(e), from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five Business Days after the execution thereof (or any lesser period to
which the Administrative Agent and Viacom may agree), (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto (but shall continue to be entitled to the benefits of Sections 2.15,
2.16, 2.20 and 9.5, as well as to any Fees accrued for its account hereunder and
not yet paid)). Notwithstanding the foregoing, any Lender or Issuing Lender
assigning its rights and obligations under this Agreement may maintain any
Competitive Loans or Letters of Credit made or issued by it outstanding at such
time, and in such case shall retain its rights hereunder in respect of any Loans
or Letters of Credit so maintained until such Loans or Letters of Credit have
been repaid or terminated in accordance with this Agreement.
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(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 Sections 3.2 and 5.1 and such other documents and
information as it has deemed appropriate to make it own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon the Administrative Agent, such assigning
Lender or any other Agent or Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (vi) such
assignee appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as agent of each
Borrower, shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive in the absence of 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, the Administrative
Agent and each Issuing Lender 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.
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(f) Each Lender may without the consent of any Borrower, the Agents or any
Issuing Lender 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, (iii) the participating banks, financial
institutions or other entities shall be entitled to the benefit of the cost
protection provisions contained in Sections 2.15, 2.16 and 2.20 to the same
extent as if they were Lenders (provided, that additional amounts payable to any
Lender pursuant to Section 2.20 shall be determined as if such Lender had not
sold any such participations) and (iv) the Borrowers, the Agents and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, and
such Lender shall retain the sole right to enforce the obligations of each
Borrower relating to the Loans and the Letters of Credit and to approve any
amendment, modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable hereunder or
the amount of principal of or the rate at which interest is payable on the Loans
or LC Disbursements, extending any scheduled principal payment date or date
fixed for the payment of interest on the Loans or LC Disbursements or of LC Fees
or Facility Fees, increasing the amount of or extending the Commitments 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, the Administrative Agent or any Issuing
Lender; 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.
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(i) Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Bank") may grant to a special purpose funding vehicle (an "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 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, the Administrative Agent and the Issuing Lenders 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, the Administrative Agent and each Issuing Lender) 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(a) or (c) 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 ▇.▇. ▇▇▇▇▇▇ Securities Inc.,
in its capacity as a Joint Lead Arranger and in its capacity as 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
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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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, counsel for ▇.▇. ▇▇▇▇▇▇ Securities Inc., in its capacity as a Joint
Lead Arranger and in its capacity as 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 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 which an Indemnified Person becomes subject 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.
73
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 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) amend, modify or waive Section 2.17(a) in a manner that would
alter the pro rata allocation of payments required thereby without the prior
written consent of all the Lenders; or (iv) amend, modify or waive any provision
of Article VII without the prior written consent of each Agent affected thereby;
provided, further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent, the Swingline Lenders or the
Issuing Lenders hereunder in such capacity without the prior written consent of
the Administrative Agent, each Swingline Lender directly affected thereby or
each Issuing Lender directly affected thereby, as the case may be.
SECTION 9.9. Entire Agreement. This Agreement (together with the Issuing
Lender Agreements, the Subsidiary Borrower Designations and the Subsidiary
Borrower Requests) constitutes the entire contract between the parties relative
to the subject matter hereof. Any previous agreement among the parties with
respect to the subject matter hereof is superseded by this Agreement. Nothing in
this Agreement, expressed or implied, is intended to
74
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 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
75
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-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
76
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. Consent to Amendments to Existing Credit Agreements. By its
execution of this Agreement, each Lender hereby consents to and approves (a)
Amendment No. 4 to the Existing $1.5 Billion Five-Year Credit Agreement, the
form of which is attached hereto as Exhibit G, and (b) Amendment No. 1 to the
Existing $3.0 Billion Five-Year Credit Agreement, the form of which is attached
hereto as Exhibit H, and hereby authorizes JPMorgan Chase Bank, N.A., in its
capacity as Administrative Agent under each of the Existing Credit Agreements,
to execute such Amendment No. 4 and such Amendment No. 1 on behalf of such
Lender.
SECTION 9.17. Patriot Act Notice. Each Lender and each Agent (for itself
and not on behalf of any other party) hereby notifies the Borrowers and Viacom
International that, pursuant to the requirements of the USA Patriot Act, Title
III of Pub. L. 107-56, signed into law October 26, 2001 (the "Patriot Act"), it
is required to obtain, verify and record information that identifies the
Borrowers and Viacom International, which information includes the name and
address of the Borrowers and Viacom International and other information that
will allow such Lender or such Agent, as applicable, to identify the Borrowers
and Viacom International in accordance with the Patriot Act.
[Remainder of the page left blank intentionally; Signature page to follow.]
S-1
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: Executive Vice President
& Chief Financial Officer
VIACOM INTERNATIONAL INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President &
Chief Financial Officer
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
CITIBANK, N.A., as Syndication Agent
and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S-2
BANK OF AMERICA, N.A., as
Co-Documentation Agent and as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
DEUTSCHE BANK SECURITIES, INC., as
Co-Documentation Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH, as
Co-Documentation Agent and as a
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Signatory
S-3
Lenders
DEUTSCHE BANK AG, NEW YORK BRANCH, as
a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
ABN AMRO BANK N.V., as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
MIZUHO CORPORATE BANK, LTD., as a
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
THE ROYAL BANK OF SCOTLAND PLC, as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
S-4
Lenders
SUMITOMO MITSUI BANKING CORPORATION,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Joint General Manager
WACHOVIA BANK, N.A., as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
DRESDNER BANK A.G., NEW YORK & GRAND
CAYMAN BRANCHES, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
SOCIETE GENERALE, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
S-5
Lenders
LLOYDS TSB BANK PLC, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VP Corporate Banking R089
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director, Financial
Institutions, USA G311
SUNTRUST BANK, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
THE BANK OF NEW YORK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON, acting
through its CAYMAN ISLANDS BRANCH,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Associate
S-6
Lenders
▇▇▇▇▇▇ BROTHERS BANK, FSB, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
UBS LOAN FINANCE LLC, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate Director Banking
Products Services, US
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Associate Director Banking
Products Services, US
UFJ BANK LIMITED, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
