Document/Exhibit Description Pages Size
1: 10-K Annual Report 118 698K
6: EX-10.(BB) Amended & Restated Five-Year Credit Agreement 88 355K
7: EX-10.(CC) Five-Year Credit Agreement 100 399K
8: EX-10.(DD) 364-Day Credit Agreement 67 287K
2: EX-10.(V) Material Contract 14 58K
3: EX-10.(X) Material Contract 4 18K
4: EX-10.(Y)(IX) Cbs Deferred Compensation & Stock Plan for 22 86K
Director
5: EX-10.(Y)(X) Advisory Director's Plan Termination Fee 9 23K
9: EX-21 Subsidiaries of Viacom Inc. 29 90K
10: EX-23.(A) Consent of Pricewaterhousecoopers LLP 1 8K
11: EX-24 Powers of Attorney 16 34K
EX-10.(BB) — Amended & Restated Five-Year Credit Agreement
Exhibit Table of Contents
EXHIBIT 10(bb)
CONFORMED COPY
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$1,450,000,000
AMENDED AND RESTATED FIVE-YEAR CREDIT AGREEMENT
among
VIACOM INC.,
VIACOM INTERNATIONAL INC.,
THE SUBSIDIARY BORROWERS PARTIES HERETO,
THE LENDERS NAMED HEREIN,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
FLEET NATIONAL BANK and BANK OF AMERICA, N.A.,
as Co-Syndication Agents
and
BANK OF NEW YORK,
as Documentation Agent,
Dated as of May 3, 2000,
As Amended and Restated as of March 7, 2001
--------------------------------------------------------------------------------
JP MORGAN, A DIVISION OF CHASE SECURITIES INC.
and
FLEETBOSTON ROBERTSON STEPHENS INC.,
as Joint Lead Arrangers and Joint Bookrunners
BANK OF AMERICA, N.A. and BANK OF NEW YORK,
as Arrangers
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS........................................................1
SECTION 1.1. Defined Terms...........................................1
SECTION 1.2. "Terms Generally"......................................18
ARTICLE II THE CREDITS......................................................20
SECTION 2.1. Commitments............................................20
SECTION 2.2. Revolving Credit Loans; Competitive Loans..............20
SECTION 2.3. Competitive Bid Procedure..............................20
SECTION 2.4. Revolving Credit Borrowing Procedure...................23
SECTION 2.5. Repayment of Loans.....................................24
SECTION 2.6. Swingline Loans........................................24
SECTION 2.7. Letters of Credit......................................27
SECTION 2.8. Conversion and Continuation Options....................31
SECTION 2.9. Fees...................................................32
SECTION 2.10. Interest on Loans; Eurodollar Tranches; Etc...........33
SECTION 2.11. Default Interest......................................34
SECTION 2.12. Alternate Rate of Interest............................34
SECTION 2.13. Termination, Reduction and Increase of Commitments....35
SECTION 2.14. Optional Prepayments of Revolving Credit Loans........36
SECTION 2.15. Reserve Requirements; Change in Circumstances.........37
SECTION 2.16. Indemnity.............................................39
SECTION 2.17. Pro Rata Treatment; Funding Matters;
Evidence of Debt......................................39
SECTION 2.18. Sharing of Setoffs....................................41
SECTION 2.19. Payments..............................................42
Page
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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....................................46
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.................................49
SECTION 3.10. Environmental.........................................49
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..................50
SECTION 4.3. All Credit Events......................................50
ARTICLE V COVENANTS.........................................................51
SECTION 5.1. Financial Statements...................................51
SECTION 5.2. Corporate Existence, Etc...............................53
SECTION 5.3. Insurance..............................................54
SECTION 5.4. Prohibition of Fundamental Changes.....................54
Page
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SECTION 5.5. Limitation on Liens....................................55
SECTION 5.6. Limitation on Subsidiary Indebtedness..................56
SECTION 5.7. Consolidated Coverage Ratio............................57
SECTION 5.8. Use of Proceeds........................................57
SECTION 5.9. Transactions with Affiliates...........................57
ARTICLE VI EVENTS OF DEFAULT................................................57
ARTICLE VII THE AGENTS......................................................60
ARTICLE VIII GUARANTEES.....................................................62
SECTION 8.1. Viacom Guarantee.......................................62
SECTION 8.2. Viacom International Guarantee.........................65
ARTICLE IX MISCELLANEOUS....................................................68
SECTION 9.1. Notices................................................68
SECTION 9.2. Survival of Agreement..................................69
SECTION 9.3. Binding Effect.........................................69
SECTION 9.4. Successors and Assigns.................................69
SECTION 9.5. Expenses; Indemnity....................................73
SECTION 9.6. Right of Setoff........................................74
SECTION 9.7. APPLICABLE LAW.........................................74
SECTION 9.8. Waivers; Amendment.....................................74
SECTION 9.9. Entire Agreement.......................................75
SECTION 9.10. Waiver of Jury Trial..................................75
SECTION 9.11. Severability..........................................76
SECTION 9.12. Counterparts..........................................76
SECTION 9.13. Headings..............................................76
SECTION 9.14. Jurisdiction; Consent to Service of Process...........76
Page
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SECTION 9.15. Confidentiality.......................................77
SECTION 9.16. Waiver of Notice of Termination Period................78
ANNEXES
Annex I Pricing Grid
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 New Lender Supplement
Exhibit H Form of Commitment Increase Letter
SCHEDULES
Schedule 1.1 Commitments; Addresses for Notices
Schedule 1.1(a) Guarantees
Schedule 5.6 Subsidiary Indebtedness
1
AMENDED AND RESTATED FIVE-YEAR CREDIT AGREEMENT entered into as of
May 3, 2000, as amended and restated as of March 7, 2001, 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"); THE CHASE MANHATTAN BANK, a New York banking
corporation ("Chase"), as administrative agent for the Lenders; FLEET NATIONAL
BANK, a national banking corporation, and BANK OF AMERICA, N.A., a national
banking association, each as co-syndication agent for the Lenders (in such
capacity, the "Co-Syndication Agents"); and BANK OF NEW YORK, a New York banking
corporation, as documentation agent for the Lenders (in such capacity, the
"Documentation Agent").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Viacom, the parent of Infinity (as defined below), has
requested to replace Infinity hereunder and Viacom has agreed to assume all of
Infinity's rights and responsibilities hereunder; and
WHEREAS, the Administrative Agent and the Lenders have agreed to
modify the terms and conditions hereof to conform to the terms and conditions of
the Five-Year Facility (as herein defined) as set forth herein; 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, Viacom, Infinity, Viacom International, each
Subsidiary Borrower heretofore designated, the Administrative Agent and each
Lender 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.
"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
2
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 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 and Joint Bookrunners, the Arrangers, the
Documentation Agent and the Co-Syndication Agents.
"Aggregate LC Exposure" shall mean, at any time, the sum of (a) the
aggregate undrawn amount of all Letters of Credit outstanding at such time and
(b) the aggregate amount which has been drawn under Letters of Credit but for
which the applicable Issuing Lender or the Lenders, as the case may be, have not
been reimbursed by Viacom or the relevant Subsidiary Borrower at such time.
3
"Agreement" shall mean this Amended and Restated Five-Year Credit
Agreement, as amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by the Lender serving as the Administrative Agent as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced as effective; and
"Federal Funds Effective Rate" shall mean, for any day, the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by it. If for
any reason the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance with
the terms thereof, the Alternate Base Rate shall be the Prime Rate until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Amendment Closing Date" shall mean March 7, 2001.
"Applicable Eurodollar Margin" shall mean the "Applicable Eurodollar
Margin" determined in accordance with the Pricing Grid set forth in Annex I
hereto.
"Applicable Facility Fee Rate" shall mean the "Applicable Facility
Fee Rate" determined in accordance with the Pricing Grid set forth in Annex I
hereto.
"Applicable LC Fee Rate" shall mean (a) with respect to Financial
Letters of Credit, the "Applicable Financial LC Fee Rate" determined in
accordance with the Pricing Grid set forth in Annex I hereto and (b) with
respect to Non-Financial Letters of Credit, the "Applicable Non-Financial LC Fee
Rate" determined in accordance with the Pricing Grid set forth in Annex I
hereto.
"Applicable Utilization Fee Rate" shall mean the "Applicable
Utilization Fee Rate" determined in accordance with the Pricing Grid set forth
in Annex I hereto.
"Arrangers" shall mean Bank of America, N.A., a national banking
association, and Bank of New York, a New York banking corporation.
"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.
4
"Blockbuster Event" means the sale or deconsolidation of Blockbuster
Inc. from Viacom, which sale or deconsolidation shall be substantially
non-recourse to Viacom and Viacom International.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Bonds" shall have the meaning assigned to such term in Section
8.2(g).
"Borrower" shall mean, as applicable, Viacom or the relevant
Subsidiary Borrower.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for 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.
"Chase" shall have the meaning assigned to such term in the preamble
to this Agreement.
"Closing Certificate" shall mean a certificate, substantially in the
form of Exhibit E.
"Closing Date" shall mean May 3, 2000.
"Code" shall mean the Internal Revenue Code of 1986, as the same may
be amended from time to time.
"Commitment" shall mean, with respect to each Lender, the commitment
of such Lender to make Revolving Credit Loans pursuant to Section 2.1, to make
or refund ABR Swingline Loans pursuant to Section 2.6 and to issue or
participate in Letters of Credit pursuant to Section 2.7, as set forth on
Schedule 1.1, as such Lender's Commitment may be permanently terminated or
reduced from time to time pursuant to Section 2.13 or changed pursuant to
Section 9.4.
5
"Commitment Increase Date" shall have the meaning assigned to such
term in Section 2.13(e).
"Commitment Increase Letter" shall have the meaning assigned to such
term in Section 2.13(e) and shall be substantially in the form of Exhibit H.
"Commitment Utilization Percentage" shall mean on any day the
percentage equivalent to a fraction (a) the numerator of which is the sum of 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).
"Communications Act" shall mean the Communications Act of 1934, as
amended.
"Competitive Bid" shall mean an offer to make a Competitive Loan
pursuant to Section 2.3.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made
pursuant to Section 2.3(b), (a) in the case of a Eurodollar Competitive Loan,
the Margin, and (b) in the case of an Absolute Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to
Section 2.3 in the form of Exhibit B-1.
"Competitive Loan" shall mean a Loan from a Lender to a Borrower
pursuant to the bidding procedure described in Section 2.3. Each Competitive
Loan shall be a Eurodollar Competitive Loan or an Absolute Rate Loan 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),
6
excluding (a) gains (losses) on sales of assets (except (I) gains (losses) on
sales of inventory sold in the ordinary course of business and (II) gains
(losses) on sales of other assets if such gains (losses) are less than
$10,000,000 individually and less than $50,000,000 in the aggregate during such
period), (b) other non-cash items (including (i) provisions for losses and
additions to valuation allowances, (ii) provisions for restructuring, litigation
and environmental reserves and losses on the Disposition of businesses and (iii)
pension settlement charges), and (c) nonrecurring expenses incurred during such
period in connection with the merger of CBS and Viacom pursuant to the Agreement
and Plan of Merger entered into by CBS, Viacom and Viacom/CBS LLC dated as of
September 6, 1999, as amended, amended and restated, supplemented and otherwise
modified from time to time, minus cash payments made during such period in
respect of non-cash charges taken during any previous period (excluding cash
payments in respect of non-cash charges taken prior to December 31, 1999).
"Consolidated Interest Expense" shall mean for any period the gross
cash interest expense of Viacom and its Consolidated Subsidiaries on
Indebtedness for such period plus cash dividends paid on preferred stock to
persons other than Viacom and its Wholly Owned Subsidiaries for such period, but
excluding the gross cash interest expense of the Discontinued Operations for
such period.
"Consolidated Subsidiary" shall mean, as to any Person, each
Subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which shall be consolidated with the
financial statements of such Person in accordance with GAAP.
"Consolidated Tangible Assets" shall mean at any date the assets of
Viacom and its Subsidiaries determined on such date on a consolidated basis,
less goodwill and other intangible assets.
"Co-Syndication Agents" shall have the meaning assigned to such term
in the preamble hereto.
"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
7
of such Issuing Lender, as a "Letter of Credit" hereunder by written notice to
the Administrative Agent in the form of Exhibit B-6.
"Discontinued Operations" shall mean the operations classifed as
"discontinued operations" pursuant to Accounting Principles Board Opinion No. 30
as presented in the quarterly report of CBS on Form 10-Q for the quarter ended
September 30, 1997 and filed with the SEC on December 14, 1997.
"Disposition" shall mean, with respect to any Property, any sale,
lease, assignment, conveyance, transfer or other disposition thereof; and the
terms "Dispose" and "Disposed of" shall have correlative meanings.
"Documentation Agent" shall have the meaning assigned to such term
in the preamble hereto.
"Dollars" or "$" shall mean lawful money of the United States of
America.
"Environmental Laws" shall mean any and all Federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment, including, without limitation, ambient air, surface water, ground
water or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or industrial, toxic or hazardous substances
or wastes.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" shall mean, with respect to 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.
"Eurodollar Competitive Loan" shall mean any Competitive Loan which
is a Eurodollar Loan.
"Eurodollar Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" shall mean, with respect to an Interest Period
pertaining to any Eurodollar Loan, the rate of interest determined on the basis
of the rate for deposits in Dollars 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.
In the event that such rate does not appear on such page of the Telerate Screen
(or otherwise on the Telerate Service), the "Eurodollar Rate" shall instead be
the interest rate per annum (rounded upwards, if
8
necessary, to the next 1/16 of 1%) equal to the average of the rates at which
deposits in Dollars or the relevant Foreign Currency, as the case may be,
approximately equal in principal amount to (a) in the case of a Eurodollar
Tranche, the portion of such Eurodollar Tranche of the Lender serving as
Administrative Agent and (b) in the case of a Eurodollar Competitive Loan, a
principal amount that would have been the portion of such Loan of the Lender
serving as the Administrative Agent had such Loan been a Eurodollar Revolving
Credit Loan, and for a maturity comparable to such Interest Period, are offered
by the principal London offices of the Reference Banks (or, if any Reference
Bank does not at the time maintain a London office, the principal London office
of any affiliate of such Reference Bank) for immediately available funds in the
London interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.
"Eurodollar Revolving Credit Loan" shall mean any Revolving Credit
Loan which is a Eurodollar Loan.
"Eurodollar Tranche" shall mean the collective reference to
Eurodollar Revolving Credit Loans made by the Lenders, the then current Interest
Periods with respect to all of which begin on the same date and end on the same
later date (whether or not such Loans shall originally have been made on the
same day).
"Event of Default" shall have the meaning assigned to such term in
Article VI; provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Excess Utilization Day" shall mean each day on which the Commitment
Utilization Percentage exceeds 50%.
"Exchange Act Report" shall have the meaning assigned to such term
in Section 3.3.
"Existing Credit Agreements" shall mean the (a) $6,400,000,000
Amended and Restated Credit Agreement, dated as of March 26, 1997 (as amended,
restated, supplemented or otherwise modified), among Viacom, as the borrower,
the banks named therein, The Bank of New York, Citibank, N.A., Morgan Guaranty
Trust Company of New York, Bank of America NT&SA and The Chase Manhattan Bank,
as managing agents, The Bank of New York, as documentation agent, Citibank,
N.A., as the administrative agent, and JP Morgan Securities Inc. and Bank of
America NT&SA, as the syndication agents; (b) $1,500,000,000 Amended and
Restated Credit Agreement, dated as of December 10, 1999 (as amended, restated,
supplemented or otherwise modified), among Viacom (successor by merger with CBS
Corporation), as the borrower, the lenders named therein, Bank of America, N.A.
and The Toronto-Dominion Bank, as syndication agents, The Chase Manhattan Bank,
as documentation agent and Morgan Guaranty Trust Company of New York, as
administrative agent; (c) $1,500,000,000 Amended and Restated Credit Agreement,
dated as of December 10, 1999 (as amended, restated, supplemented or otherwise
modified), among Infinity, as the borrower, each subsidiary borrower, Viacom
(successor by merger with CBS Corporation), as a guarantor, the lenders named
therein, Bank of America, N.A. and The Toronto-Dominion Bank, as syndication
agents, The Chase Manhattan Bank, as documentation agent and Morgan Guaranty
Trust Company of
9
New York, as administrative agent; and (d) $500,000,000 364-Day Credit
Agreement, dated as of May 3, 2000 (as amended, restated, supplemented or
otherwise modified), among Infinity, as the borrower, each subsidiary borrower,
the lenders named therein, Bank of New York, as documentation agent, The Chase
Manhattan Bank, as administrative agent, and Bank of America, N.A. and Fleet
National Bank, as co-syndication agents.
"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).
"Federal Funds Effective Rate" shall have the meaning assigned to
such term in the definition of "Alternate Base Rate".
"Fees" shall mean the Facility Fees, the Administrative Agent's
Fees, the Issuing Lender Fees, the LC Fees and the Utilization Fees.
"Financial Covenant" shall mean the financial covenant contained in
Section 5.7.
"Financial Letter of Credit" shall mean any Letter of Credit that,
as determined by the Administrative Agent acting in good faith, (a) supports a
financial obligation and (b) qualifies for the 100% credit conversion factor
under the applicable Bank for International Settlements guidelines.
"Financial Officer" of any corporation shall mean its Chief
Financial Officer, its Vice President and Treasurer or its Vice President and
Chief Accounting Officer or, in each case, any comparable officer or any Person
designated by any such officer.
"Five-Year Credit Agreement" shall mean the five-year credit
agreement, dated the date hereof, among Viacom, Viacom International, each
subsidiary borrower, the lenders party thereto, Chase, as administrative agent,
and Salomon Smith Barney Inc., as syndication agent.
"Foreign Currency" shall mean any currency other than Dollars which
is readily transferable and readily convertible by the relevant Lender or
Issuing Lender, as the case may be, into Dollars in the London interbank market.
"Foreign Exchange Rate" shall mean, with respect to any Foreign
Currency on a particular date, the rate at which such Foreign Currency may be
exchanged into Dollars, determined by reference to the selling rate in respect
of such Foreign Currency published in the "Wall Street Journal" on the relevant
date of determination. In the event that such rate is not, or ceases to be, so
published by the "Wall Street Journal", the "Foreign Exchange Rate" with respect
to such Foreign Currency shall be determined by reference to such other publicly
available source for determining exchange rates as may be agreed upon by the
Administrative Agent and Viacom or, in the absence of such agreement, such
"Foreign Exchange Rate" shall
10
instead be the Administrative Agent's spot rate of exchange in the interbank
market where its foreign currency exchange operations in respect of such Foreign
Currency are then being conducted, at or about 12:00 noon, local time, at such
date for the purchase of Dollars with such Foreign Currency, for delivery two
banking days later.
"GAAP" shall mean generally accepted accounting principles.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Granting Bank" shall have to meaning specified in Section 9.4(i).
"Guarantee" of or by any Person shall mean any obligation,
contingent or otherwise, of such Person guaranteeing or entered into with the
purpose of guaranteeing any Indebtedness of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase Property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (c) to maintain working capital, equity capital
or other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness; provided, however, that
the term "Guarantee" shall not include endorsements for collection or deposit,
in either case in the ordinary course of business.
"Indebtedness" of any Person shall mean at any date, without
duplication, (i) all obligations of such Person for borrowed money (including,
without limitation, in the case of any Borrower, 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
11
this Agreement) specifically with respect to the production, distribution and
acquisition of motion pictures or other programming rights, talent or publishing
rights.
"Infinity" shall mean Infinity Broadcasting Corporation, a Delaware
corporation.
"Interest Payment Date" shall mean (a) with respect to any
Eurodollar Loan or Absolute Rate Loan, the last day of the Interest Period
applicable thereto and, in the case of a Eurodollar Loan with an Interest Period
of more than three months' duration or an Absolute Rate Loan with an Interest
Period of more than 90 days' duration, each day that would have been an Interest
Payment Date for such Loan had successive Interest Periods of three months'
duration or 90 days' duration, as the case may be, been applicable to such Loan
and, in addition, the date of any conversion of any Eurodollar Revolving Credit
Loan to an ABR Loan, the date of repayment or prepayment of any Eurodollar Loan
and the applicable Maturity Date; (b) with respect to any ABR Loan (other than
an ABR Swingline Loan which is not an Unrefunded Swingline Loan), the last day
of each March, June, September and December and the applicable Maturity Date;
(c) with respect to any ABR Swingline Loan (other than an Unrefunded Swingline
Loan), the earlier of (i) the day that is five Business Days after such Loan is
made and (ii) the Revolving Credit Maturity Date and (d) with respect to any
Quoted Swingline Loan, the date established as such by the relevant Swingline
Borrower and the relevant Swingline Lender prior to the making thereof (but in
any event no later than the Revolving Credit Maturity Date).
"Interest Period" shall mean (a) as to any Eurodollar Loan, the
period commencing on the borrowing date or conversion date of such Loan, or on
the last day of the immediately preceding Interest Period applicable to such
Loan, as the case may be, and ending on the numerically corresponding day (or,
if there is no numerically corresponding day, on the last day) in the calendar
month that is 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 Eurodollar Loans only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day and
(ii) notwithstanding anything to the contrary herein, no Borrower may select an
Interest Period which would end after the Maturity Date applicable to the
relevant Loan. Interest shall accrue from and including that first day of an
Interest Period to but excluding the last day of such Interest Period.
"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 Lender
or Lender Affiliate of such Lender which issued such Designated Letter of
Credit.
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"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.
"LC Disbursement" shall mean any payment or disbursement made by an
Issuing Lender under or pursuant to a Letter of Credit.
"LC Exposure" shall mean, as to each Lender, such Lender's Revolving
Credit Percentage of the Aggregate LC Exposure.
"LC Fee" shall have the meaning assigned such term in Section
2.9(b).
"Lender Affiliate" shall mean, (a) with respect to any Lender, (i)
an affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a Lender or an
affiliate of such Lender and (b) with respect to any Lender that is a fund which
invests in bank loans and similar extensions of credit, any other fund that
invests in bank loans and similar extensions of credit and is managed by the
same investment advisor as such Lender or by an affiliate of such investment
advisor.
"Lenders" shall have the meaning assigned to such term in the
preamble to this Agreement.
"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.
"Margin" shall mean, as to any Eurodollar Competitive Loan, the
margin (expressed as a percentage rate per annum in the form of a decimal
rounded to no more than four places) to be added to or subtracted from the
Eurodollar Rate in order to determine the interest rate applicable to such Loan,
as specified in the Competitive Bid relating to such Loan.
"Margin Stock" shall have the meaning assigned to such term under
Regulation U.
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"Material Acquisition" shall mean any acquisition of Property or
series of related acquisitions of Property (including by way of merger) which
(a) constitutes assets comprising all or substantially all of an operating unit
of a business or constitutes all or substantially all of the common stock of a
Person and (b) involves the payment of consideration by Viacom and its
Subsidiaries (valued at the initial principal amount thereof in the case of
non-cash consideration consisting of notes or other debt securities and valued
at fair market value in the case of other non-cash consideration) in excess of
$100,000,000.
"Material Adverse Effect" shall mean (a) a material adverse effect
on the Property, business, results of operations or financial condition of
Viacom and its Subsidiaries taken as a whole or (b) material impairment of the
ability of Viacom to perform any of its obligations under this Agreement.
"Material Disposition" shall mean any Disposition of Property or
series of related Dispositions of Property which yields gross proceeds to Viacom
or any of its Subsidiaries (valued at the initial principal amount thereof in
the case of non-cash proceeds consisting of notes or other debt securities and
valued at fair market value in the case of other non-cash proceeds) in excess of
$100,000,000.
"Material Subsidiary" shall mean any "significant subsidiary" of
Viacom as defined in Regulation S-X of the SEC; provided, that each Subsidiary
Borrower shall in any event constitute a Material Subsidiary.
"Maturity Date" shall mean (a) in the case of the Revolving Credit
Loans and the ABR Swingline Loans, the Revolving Credit Maturity Date, (b) in
the case of the Quoted Swingline Loans, the date established as such by the
relevant Swingline Borrower and the relevant Swingline Lender prior to the
making thereof (but in any event no later than the Revolving Credit Maturity
Date) and (c) in the case of Competitive Loans, the last day of the Interest
Period applicable thereto, as specified in the related Competitive Bid Request.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 3(37) of ERISA to which contributions have been made by Viacom or any
ERISA Affiliate of Viacom and which is covered by Title IV of ERISA.
"New Lender" shall have the meaning assigned to such term in Section
2.13(d).
"New Lender Supplement" shall mean the agreement made pursuant to
Section 2.13(d) substantially in the form of Exhibit G.
"Non-Financial Letter of Credit" shall mean any Letter of Credit
that is not a Financial Letter of Credit.
"Non-U.S. Person" shall have the meaning assigned to such term in
Section 2.20(f).
14
"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 Chase, Citibank N.A. and Bank of
America, N.A.
"Register" shall have the meaning assigned to such term in Section
9.4(d).
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
15
"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 Eurodollar Loan or an ABR Loan.
"Revolving Credit Maturity Date" shall mean May 3, 2005.
"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.
"SEC" shall mean the Securities and Exchange Commission.
"SPC" shall have the meaning specified in Section 9.4(i).
"Spot Rate" shall mean, at any date, the Administrative Agent's or
Lender's, as the case may be, (or, for purposes of determinations in respect of
the Aggregate LC Exposure related to Letters of Credit issued in a Foreign
Currency, the Issuing Lender's or Issuing Lenders', as the case may be) spot
buying rate for the relevant Foreign Currency against Dollars as of
approximately 11:00 a.m. (London time) on such date for settlement on the second
Business Day.
"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
16
"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.
"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 The Chase Manhattan Bank and any
other Lender designated from time to time by Viacom, and approved by such
Lender, as a "Swingline Lender" pursuant to Section 2.6(g).
"Swingline Loans" shall mean the collective reference to the ABR
Swingline Loans and the Quoted Swingline Loans.
17
"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.
"Test Period" shall have the meaning assigned to such term in
Section 1.2(c).
"364-Day Credit Agreement" shall mean the 364-day credit agreement,
dated the date hereof, among Viacom, Viacom International, each subsidiary
borrower, the lenders party thereto, Chase, as administrative agent, and Salomon
Smith Barney Inc., as syndication agent.
"Total Commitment" shall mean at any time the aggregate amount of
the Commitments in effect at such time.
"Total Facility Exposure" shall mean at any time the aggregate
amount of the Facility Exposures at such time.
"Total Facility Percentage" shall mean, as to any Lender at any
time, the quotient (expressed as a percentage) of (a) such Lender's Commitment
(or (x) for the purposes of acceleration of the Loans pursuant to clause (II) of
Article VI or (y) if the Commitments have terminated, such Lender's Facility
Exposure) and (b) the aggregate of all Lenders' Commitments (or (x) for the
purposes of acceleration of the Loans pursuant to clause (II) of Article VI or
(y) if the Commitments have terminated, the Total Facility Exposure).
"Transferee" shall mean any assignee or participant described in
Section 9.4(b) or (f).
"Type" when used in respect of any Loan, shall refer to the Rate by
reference to which interest on such Loan is determined. For purposes hereof,
"Rate" shall mean the Eurodollar Rate, the Alternate Base Rate, the Quoted
Swingline Rate and the rate paid on Absolute Rate Loans.
"Unrefunded Swingline Loans" shall have the meaning assigned to such
term in Section 2.6(d).
"U.S. Person" shall mean a citizen, national or resident of the
United States of America, or an entity organized in or under the laws of the
United States of America.
"Utilization Fee" shall have the meaning assigned to such term in
Section 2.9(e).
"Viacom" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Viacom International" shall have the meaning assigned to such term
in the preamble to this Agreement.
"Viacom Obligations" shall mean, with respect to Viacom, the unpaid
principal of and interest on the Loans made to Viacom (including, without
limitation, interest accruing after the maturity of the Loans made to Viacom and
interest accruing after the filing of any petition in
18
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.
"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").
SECTION 1.2. "Terms Generally".
(a) The definitions in Section 1.1 shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall, except
where the context otherwise requires, be deemed to be followed by the phrase
"without limitation". All references herein to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and Exhibits
and Schedules to, this Agreement unless the context shall otherwise require.
(b) Except as otherwise expressly provided herein, all terms of an
accounting nature shall be construed in accordance with GAAP in effect from time
to time. The parties hereto agree, however, that in the event that any change in
accounting principles from those used in the preparation of the financial
statements referred to in Section 3.2 is hereafter occasioned by the
promulgation of rules, regulations, pronouncements, opinions and statements by
or required by the Financial Accounting Standards Board or Accounting Principles
Board or the American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) and such change materially affects
the calculation of any component of the Financial Covenant or any standard or
term contained in this Agreement, the Administrative Agent and Viacom shall
negotiate in good faith to amend such Financial Covenant, standards or terms
found in this Agreement (other than in respect of financial statements to be
delivered hereunder) so that, upon adoption of such changes, the criteria for
evaluation of Viacom's and its Subsidiaries' financial condition shall be the
same after such change as if such change had not been made; provided, however,
that (i) any such amendments shall not become effective for purposes of this
Agreement unless approved by the Required Lenders and (ii) if Viacom and the
Required Lenders cannot agree on such an amendment, then the calculations under
such Financial Covenant, standards or terms shall continue to be computed
without giving effect to such change in accounting principles; provided further,
however, that the parties hereto agree that Viacom and its Subsidiaries shall
adopt Statement of Position 00-2, "Accounting by Producers or Distributors of
Films" effective as from January 1, 2000.
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(c) For the purposes of calculating Consolidated EBITDA and
Consolidated Interest Expense for any period (a "Test Period"), (i) if at any
time from the period (a "Pro Forma Period") commencing on the second day of such
Test Period and ending on the date which is ten days prior to the date of
delivery of the Compliance Certificate in respect of such Test Period (or, in
the case of any pro forma calculation made pursuant hereto in respect of a
particular transaction, ending on the date such transaction is consummated after
giving effect thereto), Viacom or any Subsidiary shall have made any Material
Disposition, the Consolidated EBITDA for such Test Period shall be reduced by an
amount equal to the Consolidated EBITDA (if positive) attributable to the
Property which is the subject of such Material Disposition for such Test Period
or increased by an amount equal to the Consolidated EBITDA (if negative)
attributable thereto for such Test Period, and Consolidated Interest Expense for
such Test Period shall be reduced by an amount equal to the Consolidated
Interest Expense for such Test Period attributable to any Indebtedness of Viacom
or any Subsidiary repaid, repurchased, defeased or otherwise discharged with
respect to Viacom and its Subsidiaries in connection with such Material
Disposition (or, if the Capital Stock of any Subsidiary is sold, the
Consolidated Interest Expense for such Test Period directly attributable to the
Indebtedness of such Subsidiary to the extent Viacom and its continuing
Subsidiaries are no longer liable for such Indebtedness after such Disposition);
(ii) if during such Pro Forma Period Viacom or any Subsidiary shall have made a
Material Acquisition, Consolidated EBITDA and Consolidated Interest Expense for
such Test Period shall be calculated after giving pro forma effect thereto
(including the incurrence or assumption of any Indebtedness in connection
therewith) as if such Material Acquisition (and the incurrence or assumption of
any such Indebtedness) occurred on the first day of such Test Period; and (iii)
if during such Pro Forma Period any Person that subsequently became a Subsidiary
or was merged with or into Viacom or any Subsidiary since the beginning of such
Pro Forma Period shall have entered into any disposition or acquisition
transaction that would have required an adjustment pursuant to clause (i) or
(ii) above if made by Viacom or a Subsidiary during such Pro Forma Period,
Consolidated EBITDA and Consolidated Interest Expense for such Test Period shall
be calculated after giving pro forma effect thereto as if such transaction
occurred on the first day of such Test Period. For the purposes of this
paragraph, whenever pro forma effect is to be given to a Material Disposition or
Material Acquisition, the amount of income or earnings relating thereto and the
amount of Consolidated Interest Expense associated with any Indebtedness
discharged or incurred in connection therewith, the pro forma calculations shall
be determined in good faith by a Financial Officer of Viacom. If any
Indebtedness bears a floating rate of interest and the incurrence or assumption
thereof is being given pro forma effect, the interest expense on such
Indebtedness shall be calculated as if the rate in effect on the last day of the
relevant Pro Forma Period had been the applicable rate for the entire relevant
Test Period (taking into account any interest rate protection agreement
applicable to such Indebtedness if such interest rate protection agreement has a
remaining term in excess of 12 months). Comparable adjustments shall be made in
connection with any determination of Consolidated EBITDA.
(d) For purposes of the Financial Covenant, (i) the Discontinued
Operations shall be disregarded and (ii) the businesses classified as
Discontinued Operations shall be limited to those businesses treated as such in
the financial statements of Viacom referred to in the definition of
"Discontinued Operations" and the accounting treatment of Discontinued
Operations shall be consistent with the accounting treatment thereof in such
financial statements.
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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 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.
Each Competitive Loan shall be made to the relevant Borrower by the Lender whose
Competitive Bid therefor is accepted, and in the amount so accepted, in
accordance with the procedures set forth in Section 2.3. The Revolving Credit
Loans or Competitive Loans shall be made in minimum amounts equal to (i) in the
case of Competitive Loans, $5,000,000 or an integral multiple of $1,000,000 in
excess thereof, (ii) in the case of Eurodollar Revolving Credit Loans,
$50,000,000 or an integral multiple of $5,000,000 in excess thereof, and (iii)
in the case of ABR Revolving Credit Loans, $25,000,000 or an integral multiple
of $5,000,000 in excess thereof (or an aggregate principal amount equal to the
remaining balance of the available Total Commitment).
(b) Each Lender shall make each Loan (other than a Swingline Loan,
as to which this Section 2.2 shall not apply) to be made by it on the proposed
date thereof by wire transfer of immediately available funds to the
Administrative Agent in New York, New York, not later than 12:00 noon, New York
City time (or, in connection with an ABR Loan to be made on the same day on
which a notice is submitted, 12:30 p.m., New York City time) and the
Administrative Agent shall by 3:00 p.m., New York City time, credit the amounts
so received to the general deposit account of the relevant Borrower with the
Administrative Agent.
SECTION 2.3. Competitive Bid Procedure.
(a) In order to request Competitive Bids, the relevant Borrower
shall hand deliver or telecopy to the Administrative Agent a duly completed
Competitive Bid Request in the form of Exhibit B-1, to be received by the
Administrative Agent (i) in the case of a Eurodollar Competitive Loan 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 Eurodollar Competitive
Loan in a Foreign Currency, not
21
later than 10:00 a.m., New York City time, five Business Days before a proposed
Competitive Loan , (iii) in the case of an Absolute Rate Loan in Dollars, not
later than 10:00 a.m., New York City time, one Business Day before a proposed
Competitive Loan and (iv) in the case of an Absolute Rate Loan in a Foreign
Currency, not later than 10:00 a.m., New York City time, three Business Day
before a proposed Competitive Loan. A Competitive Bid Request (A) that does not
conform substantially to the format of Exhibit B-1 may be rejected in the
Administrative Agent's discretion (exercised in good faith), and, (B) for a
Competitive Loan denominated in a Foreign Currency will be rejected by the
Administrative Agent if, after giving effect thereto, the Dollar equivalent of
the aggregate face amount of all Competitive Loans denominated in Foreign
Currencies then outstanding would exceed $150,000,000, as determined by the
Administrative Agent, and, in each case, the Administrative Agent shall promptly
notify the relevant Borrower of such rejection by telephone, confirmed by
telecopier. Such request shall in each case refer to this Agreement and specify
(w) whether the Competitive Loan then being requested is to be a Eurodollar
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 Eurodollar
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
Eurodollar Competitive Loan in a Foreign Currency, not later than 9:30 a.m., New
York City time, four Business Days before a proposed Competitive Loan, (iii) in
the case of an Absolute Rate Loan in Dollars, not later than 9:30 a.m., New York
City time, on the day of a proposed Competitive Loan, and (iv) in the case of an
Absolute Rate Loan in a Foreign Currency, not later than 9:30 a.m., New York
City time, two days before a proposed Competitive Loan. Multiple Competitive
Bids will be accepted by the Administrative Agent. Competitive Bids that do not
conform substantially to the format of Exhibit B-3 may be rejected by the
Administrative Agent after conferring with, and upon the instruction of, the
relevant Borrower, and the Administrative Agent shall notify the Lender making
such nonconforming Competitive Bid of such rejection as soon as practicable.
Each Competitive Bid shall refer to this Agreement and specify (x) the principal
amount in the relevant currency (which shall be in a minimum principal amount of
the equivalent of $5,000,000 and, in the case of a Competitive Bid for a
Competitive Loan in Dollars, in an integral multiple of $1,000,000 and which may
equal the entire principal amount of the Competitive Loan requested by the
relevant Borrower) of the Competitive Loan or Loans that the applicable Lender
is willing to make to the relevant Borrower, (y) the Competitive Bid Rate or
Rates at which such Lender is prepared to make the Competitive Loan or Loans and
(z) the Interest Period and the last day thereof. A Competitive Bid submitted
pursuant to this paragraph
22
(b) shall be irrevocable (subject to the satisfaction of the conditions to
borrowing set forth in Article IV).
(c) The Administrative Agent shall promptly (and in any event by
10:15 a.m., New York City time, on the date on which such Competitive Bids shall
have been made) notify the relevant Borrower by telecopier of all the
Competitive Bids made, the Competitive Bid Rate and the principal amount in the
relevant currency of each Competitive Loan in respect of which a Competitive Bid
was made and the identity of the Lender that made each Competitive Bid. The
Administrative Agent shall send a copy of all Competitive Bids to the relevant
Borrower for its records as soon as practicable after completion of the bidding
process set forth in this Section 2.3.
(d) The relevant Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. The relevant Borrower shall
notify the Administrative Agent by telephone, confirmed by telecopier in such
form as may be agreed upon by such Borrower and the Administrative Agent,
whether and to what extent it has decided to accept or reject any of or all the
Competitive Bids referred to in paragraph (c) above, (i) in the case of a
Eurodollar 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 Eurodollar 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 day before a proposed Competitive Loan;
provided, however, that (A) the failure by such Borrower to give such notice
shall be deemed to be a rejection of all the Competitive Bids referred to in
paragraph (c) above, (B) such Borrower shall not accept a Competitive Bid made
at a particular Competitive Bid Rate if it has decided to reject a Competitive
Bid made at a lower Competitive Bid Rate, (C) the aggregate amount of the
Competitive Bids accepted by such Borrower shall not exceed the principal amount
specified in the Competitive Bid Request (but may be less than that requested),
(D) if such Borrower shall accept a Competitive Bid or Competitive Bids made at
a particular Competitive Bid Rate but the amount of such Competitive Bid or
Competitive Bids shall cause the total amount of Competitive Bids to be accepted
by it to exceed the amount specified in the Competitive Bid Request, then such
Borrower shall accept a portion of such Competitive Bid or Competitive Bids in
an amount equal to the amount specified in the Competitive Bid Request less the
amount of all other Competitive Bids accepted with respect to such Competitive
Bid Request, which acceptance, in the case of multiple Competitive Bids at such
Competitive Bid Rate, shall be made pro rata in accordance with the amount of
each such Competitive Bid at such Competitive Bid Rate, and (E) except pursuant
to clause (D) above no Competitive Bid shall be accepted for a Competitive Loan
unless such Competitive Loan is in a minimum principal amount of the equivalent
of $5,000,000 and, in the case of a Competitive Bid for a Competitive Loan in
Dollars, an integral amount multiple of $1,000,000; provided, further, however,
that if a Competitive Loan must be in an amount less than the equivalent of
$5,000,000 because of the provisions of clause (D) above, such Competitive Loan
may be for a minimum of, in the case of a Competitive Bid for a Competitive Loan
in Dollars, $1,000,000 or any integral multiple thereof, and in calculating the
pro rata allocation of acceptances of portions of multiple
23
Competitive Bids at a particular Competitive Bid Rate pursuant to clause (D)
above the amounts shall be rounded to integral multiples of the equivalent of
$1,000,000 (or, in the case of a Competitive Bid for a Competitive Loan in a
Foreign Currency, a multiple selected by the Administrative Agent) in a manner
which shall be in the discretion of such Borrower. A notice given by any
Borrower pursuant to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender whether or not its Competitive Bid has been accepted (and if so, in what
amount and at what Competitive Bid Rate) by telecopy sent by the Administrative
Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Loan in respect of
which its Competitive Bid has been accepted.
(f) On the date the Competitive Loan is to be made, each Lender
participating therein shall (i) if such Competitive Loan is to be made in
Dollars, make available its share of such Competitive Loan in Dollars not later
than 2:00 p.m. New York City time, in immediately available funds, in New York
to the Administrative Agent as notified by the Administrative Agent by two
Business Days notice and (ii) if such Competitive Loan is to be made in a
Foreign Currency, make available its share of such Competitive Loan in such
Foreign Currency not later than 11:00 a.m. London time, in immediately available
funds, in London to the Administrative Agent as notified by the Administrative
Agent by two Business Days notice.
(g) If the Lender which is the Administrative Agent shall elect to
submit a Competitive Bid in its capacity as a Lender, it shall submit such
Competitive Bid directly to the relevant Borrower at least one quarter of an
hour earlier than the latest time at which the other Lenders are required to
submit their Competitive Bids to the Administrative Agent pursuant to paragraph
(b) above.
(h) All notices required by this Section 2.3 shall be given in
accordance with Section 9.1.
(i) No Borrower shall have the right to prepay any Competitive Loan
without the consent of the Lender or Lenders making such Competitive Loan.
SECTION 2.4. Revolving Credit Borrowing Procedure.
In order to request a Revolving Credit Loan, the relevant Borrower
shall hand deliver or telecopy to the Administrative Agent a Revolving Credit
Borrowing Request in the form of Exhibit B-4 (a) in the case of a Eurodollar
Revolving Credit Loan, not later than 11:00 a.m., New York City time, three
Business Days before a proposed borrowing and (b) in the case of an ABR
Revolving Credit Loan, not later than 11:00 a.m., New York City time, on the day
of a proposed borrowing. Such notice shall be irrevocable and shall in each case
specify (i) whether the Revolving Credit Loan then being requested is to be a
Eurodollar Revolving Credit Loan or an ABR Revolving Credit Loan, (ii) the date
of such Revolving Credit Loan (which shall be a Business Day) and the amount
thereof; and (iii) in the case of a Eurodollar Revolving Credit Loan, the
Interest Period with respect thereto. The Administrative Agent shall promptly
advise the Lenders of any notice given pursuant to this Section 2.4 and of each
Lender's portion of the requested Loan.
24
SECTION 2.5. Repayment of Loans.
Each Borrower shall repay all outstanding Revolving Credit Loans and
ABR Swingline Loans made to it, in each case on the Revolving Credit Maturity
Date (or such earlier date on which the Commitments shall terminate in
accordance herewith). Each Borrower shall repay Quoted Swingline Loans and
Competitive Loans made to it, in each case on the Maturity Date applicable
thereto. Each Loan shall bear interest from and including the date thereof on
the outstanding principal balance thereof as set forth in Section 2.10.
SECTION 2.6. Swingline Loans.
(a) Subject to the terms and conditions hereof and relying upon the
representations and warranties herein set forth, each Swingline Lender agrees,
severally and not jointly, at any time and from time to time on and after the
Closing Date and until the earlier of the Business Day immediately preceding the
Revolving Credit Maturity Date and the termination of the Swingline Commitment
of such Swingline Lender, (i) to make available to any Swingline Borrower
Swingline Loans ("Quoted Swingline Loans") on the basis of quoted interest rates
(each, a "Quoted Swingline Rate") furnished by such Swingline Lender from time
to time in its discretion to such Swingline Borrower (through the Administrative
Agent) and accepted by such Swingline Borrower in its discretion and (ii) to
make Swingline Loans ("ABR Swingline Loans") to any Swingline Borrower bearing
interest at a rate equal to the Alternate Base Rate in an aggregate principal
amount (in the case of this clause (ii)) not to exceed such Swingline Lender's
Swingline Commitment. The aggregate outstanding principal amount of the Quoted
Swingline Loans of any Swingline Lender, when added to the aggregate outstanding
principal amount of the ABR Swingline Loans of such Swingline Lender, may exceed
such Swingline Lender's Swingline Commitment; provided, that in no event shall
the aggregate outstanding principal amount of the Swingline Loans exceed the
aggregate Swingline Commitments then in effect. Each Quoted Swingline Loan shall
be made only by the Swingline Lender furnishing the relevant Quoted Swingline
Rate. Each ABR Swingline Loan shall be made by the Swingline Lenders ratably in
accordance with their respective Swingline Percentages. The Swingline Loans
shall be made in a minimum aggregate principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof (or an aggregate principal
amount equal to the remaining balance of the available Swingline Commitments).
Each Swingline Lender shall make the portion of each Swingline Loan to be made
by it available to any Swingline Borrower by means of a credit to the general
deposit account of such Swingline Borrower with the Administrative Agent or a
wire transfer, at the expense of such Swingline Borrower, to an account
designated in writing by such Swingline Borrower, in each case by 3:30 p.m., New
York City time, on the date such Swingline Loan is requested to be made pursuant
to paragraph (b) below, in immediately available funds. Each Swingline Borrower
may borrow, prepay and reborrow Swingline Loans on or after the Closing Date and
prior to the Revolving Credit Maturity Date (or such 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
25
York City time), on the day of a proposed Swingline Loan. Such notice shall be
delivered on a Business Day, shall be irrevocable (subject, in the case of
Quoted Swingline Loans, to receipt by the relevant Swingline Borrower of Quoted
Swingline Rates acceptable to it) and shall refer to this Agreement and shall
specify the requested date (which shall be a Business Day) and amount of such
Swingline Loan. The Administrative Agent shall promptly advise the Swingline
Lenders of any notice received from any Swingline Borrower pursuant to this
paragraph (b). In the event that a Swingline Borrower accepts a Quoted Swingline
Rate in respect of a proposed Quoted Swingline Loan, it shall notify the
Administrative Agent (which shall in turn notify the relevant Swingline Lender)
of such acceptance no later than 2:30 p.m., New York City time, on the relevant
borrowing date.
(c) In the event that any ABR Swingline Loan shall be outstanding
for more than five Business Days, the Administrative Agent shall, on behalf of
the relevant Swingline Borrower (which hereby irrevocably directs and authorizes
the Administrative Agent to act on its behalf), request each Lender, including
the Swingline Lenders, to make an ABR Revolving Credit Loan in an amount equal
to such Lender's Revolving Credit Percentage of the principal amount of such ABR
Swingline Loan. 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
26
outstanding and funded); provided, however, that in the event that such payment
received by such Swingline Lender is required to be returned, such Lender will
return to such Swingline Lender any portion thereof previously distributed by
such Swingline Lender to it.
(f) Notwithstanding anything to the contrary in this Agreement, each
Lender's obligation to make the Revolving Credit Loans referred to in Section
2.6(c) and to purchase and fund participating interests pursuant to Section
2.6(d) shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender or any Swingline Borrower
may have against any Swingline Lender, any Swingline Borrower or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of a
Default or an Event of Default or the failure to satisfy any of the conditions
specified in Article IV; (iii) any adverse change in the condition (financial or
otherwise) of Viacom or any of its Subsidiaries; (iv) any breach of this
Agreement by any Borrower or any Lender; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
(g) Upon written or telecopy notice to the Swingline Lenders and to
the Administrative Agent, Viacom may at any time terminate, from time to time in
part reduce, or from time to time (with the approval of the relevant Swingline
Lender) increase, the Swingline Commitment of any Swingline Lender. At any time
when there shall be fewer than ten Swingline Lenders, Viacom may appoint from
among the Lenders a new Swingline Lender, subject to the prior consent of such
new Swingline Lender and prior notice to the Administrative Agent, so long as at
no time shall there be more than ten Swingline Lenders. Notwithstanding anything
to the contrary in this Agreement, (i) if any ABR Swingline Loans shall be
outstanding at the time of any termination, reduction, increase or appointment
pursuant to the preceding two sentences, the Swingline Borrowers shall on the
date thereof prepay or borrow ABR Swingline Loans to the extent necessary to
ensure that at all times the outstanding ABR Swingline Loans held by the
Swingline Lenders shall be pro rata according to the respective Swingline
Commitments of the Swingline Lenders and (ii) in no event may the aggregate
Swingline Commitments exceed $300,000,000. On the date of any termination or
reduction of the Swingline Commitments pursuant to this paragraph (g), the
Swingline Borrowers shall pay or prepay so much of the Swingline Loans as shall
be necessary in order that, after giving effect to such termination or
reduction, (i) the aggregate outstanding principal amount of the ABR Swingline
Loans of any Swingline Lender will not exceed the Swingline Commitment of such
Swingline Lender and (ii) the aggregate outstanding principal amount of all
Swingline Loans will not exceed the aggregate Swingline Commitments.
(h) Each Swingline Borrower may prepay any Swingline Loan in whole
or in part at any time without premium or penalty; provided, that such Swingline
Borrower shall have given the Administrative Agent written or telecopy notice
(or telephone notice promptly confirmed in writing or by telecopy) of such
prepayment not later than 10:30 a.m., New York City time, on the Business Day
designated by such Swingline Borrower for such prepayment; and provided,
further, that each partial payment shall be in an amount that is an integral
multiple of $1,000,000. Each notice of prepayment under this paragraph (h) shall
specify the prepayment date and the principal amount of each Swingline Loan (or
portion thereof) to be prepaid, shall be irrevocable and shall commit such
Swingline Borrower to prepay such Swingline Loan (or portion thereof) by the
amount stated therein on the date stated therein. All prepayments under
27
this paragraph (h) shall be accompanied by accrued interest on the principal
amount being prepaid to the date of payment. Each payment of principal of or
interest on ABR Swingline Loans shall be allocated, as between the Swingline
Lenders, pro rata in accordance with their respective Swingline Percentages.
SECTION 2.7. Letters of Credit.
(a) Subject to the terms and conditions hereof and relying upon the
representations and warranties herein set forth, each Issuing Lender agrees, at
any time and from time to time on or after the Closing Date until the earlier of
(i) the fifth Business Day preceding the Revolving Credit Maturity Date and (ii)
the termination of the Commitments in accordance with the terms hereof, to issue
and deliver or to extend the expiry of Letters of Credit for the account of any
Borrower in an aggregate outstanding undrawn amount which does not exceed the
maximum amount specified in the applicable Issuing Lender Agreement; provided,
that in no event shall the Aggregate LC Exposure exceed $750,000,000 at any
time. Each Letter of Credit (i) shall be in a form approved in writing by the
applicable Borrower and the applicable Issuing Lender and (ii) shall permit
drawings upon the presentation of such documents as shall be specified by such
Borrower in the applicable notice delivered pursuant to paragraph (c) below. The
Lenders agree that, subject to compliance with the conditions precedent set
forth in Section 4.3, any Designated Letter of Credit may be designated as a
Letter of Credit hereunder from time to time on or after the Closing Date
pursuant to the procedures specified in the definition of "Designated Letters of
Credit". For the avoidance of doubt, Letters of Credit issued by any Issuing
Lender under this Agreement after the Closing Date, but before the Amendment
Closing Date, shall be deemed to be issued under this Agreement for all purposes
herein so long as such Issuing Lender continues to be a Lender after the
Amendment Closing Date. Viacom confirms that any Issuing Lender Agreement or
like agreement entered into by any Issuing Lender (i) under this Agreement after
the Closing Date, but before the Amendment Closing Date or (ii) in respect of
any Designated Letter of Credit, in each case, shall continue to be binding on
the parties thereto
(b) Each Letter of Credit shall by its terms expire not later than
the fifth Business Day preceding the Revolving Credit Maturity Date. Any Letter
of Credit may provide for the renewal thereof for additional periods (which
shall in no event extend beyond the date referred to in the preceding sentence).
Each Letter of Credit shall by its terms provide for payment of drawings in
Dollars or in a Foreign Currency; provided, that a Letter of Credit denominated
in a Foreign Currency may not be issued if, after giving effect thereto, the
Dollar equivalent (calculated on the basis of the applicable Foreign Exchange
Rate) of the aggregate face amount of all Letters of Credit denominated in
Foreign Currencies then outstanding would exceed $150,000,000, as determined by
the Administrative Agent acting in good faith.
(c) The applicable Borrower shall give the applicable Issuing Lender
and the Administrative Agent written or telecopy notice not later than 10:00
a.m., New York City time, three Business Days (or such shorter period as shall
be acceptable to such Issuing Lender) prior to any proposed issuance of a Letter
of Credit. Each such notice shall refer to this Agreement and shall specify (i)
the date on which such Letter of Credit is to be issued (which shall be a
Business Day) and the face amount of such Letter of Credit, (ii) the name and
address of the beneficiary, (iii) whether such Letter of Credit is a Financial
Letter of Credit or a Non-Financial
28
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.
(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
29
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:
(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
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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 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, 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
31
amount thereof for any period in respect of which LC Fees are payable and, upon
request by the Administrative Agent, for any other date or period. For all
purposes of this Agreement, determinations by the Administrative Agent of the
Dollar equivalent of any amount expressed in a Foreign Currency shall be made on
the basis of Foreign Exchange Rates reset monthly (or on such other periodic
basis as shall be selected by the Administrative Agent in its sole discretion)
and shall in each case be conclusive absent manifest error.
(ii) Notwithstanding anything to the contrary contained in this
Section 2.7, prior to demanding any reimbursement from the Lenders pursuant to
Section 2.7(f) in respect of any Letter of Credit denominated in a Foreign
Currency, the relevant Issuing Lender shall convert the 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
Eurodollar Revolving Credit Loans (or, subject to Section 2.10(f), a portion
thereof) to ABR Revolving Credit Loans on the last day of an Interest Period
with respect thereto by giving the Administrative Agent prior irrevocable notice
of such election. The relevant Borrower may elect from time to time to convert
ABR Revolving Credit Loans (subject to Section 2.10(f)) to Eurodollar Revolving
Credit Loans by giving the Administrative Agent at least three Business Days'
prior irrevocable notice of such election. Any such notice of conversion to
Eurodollar Revolving Credit Loans shall specify the length of the initial
Interest Period therefor. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Lender thereof. All or any part of outstanding
Eurodollar Revolving Credit Loans and ABR Revolving Credit Loans may be
converted as provided herein; provided, that no Revolving Credit Loan may be
converted into a Eurodollar Revolving Credit Loan when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Required
Lenders have determined in its or their sole discretion not to permit such a
conversion.
(b) Any Eurodollar Revolving Credit Loans (or, subject to Section
2.10(f), a portion thereof) may be continued as such upon the expiration of the
then current Interest Period with respect thereto by the relevant Borrower
giving irrevocable notice to the Administrative Agent, not less than three
Business Days prior to the last day of the then current Interest Period with
respect thereto, of the length of the next Interest Period to be applicable to
such Revolving Credit Loans; provided, that no Eurodollar Revolving Credit Loan
may be continued as such when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit such a continuation;
and provided, further, that if the relevant Borrower shall fail to give any
required notice as described above in this paragraph or if such continuation is
not permitted pursuant to the preceding proviso such Eurodollar Revolving Credit
Loans shall be automatically converted to ABR Revolving Credit Loans on the last
day of such then expiring Interest Period. Upon receipt of any notice from a
Borrower pursuant to this Section 2.8(b), the Administrative Agent shall
promptly notify each Lender thereof. The Administrative Agent shall promptly
notify the
32
applicable Borrower upon the determination in accordance with this Section
2.8(b), by it or the Required Facility Lenders, not to permit such a
continuation.
SECTION 2.9. Fees.
(a) Viacom agrees to pay to the Administrative Agent for the account
of each Lender a Facility Fee for the period from and including the Amendment
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 the 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, on the Revolving Credit
Maturity Date or such earlier date on which the Commitments shall be terminated,
commencing on the first of such dates to occur after the Amendment Closing Date.
(b) Viacom agrees to pay each Lender, through the Administrative
Agent, on the last day of each March, June, September and December and on the
Revolving Credit Maturity Date or the date on which the Commitment of such
Lender shall be terminated as provided herein and all Letters of Credit issued
hereunder shall have expired, a letter of credit fee (an "LC Fee") computed at a
per annum rate equal to the Applicable LC Fee Rate on such Lender's Revolving
Credit Percentage of the average daily undrawn amount of the Financial Letters
of Credit or Non-Financial Letters of Credit, as the case may be, outstanding
during the preceding quarter (or shorter period commencing with the Closing Date
or ending with the Revolving Credit Maturity Date or the date on which the
Commitment of such Lender shall have been terminated and all Letters of Credit
issued hereunder shall have expired). All LC Fees shall be computed on the basis
of the actual number of days elapsed in a year of 360 days.
(c) Viacom agrees to pay to the Administrative Agent, for its own
account, the administrative agent's fees ("Administrative Agent's Fees")
provided for in the Administrative Agent Fee Letter at the times provided
therein.
(d) Each Borrower agrees to pay to each Issuing Lender, through the
Administrative Agent, for its own account, the applicable Issuing Lender Fees,
including, without limitation, a fronting fee at a rate to be determined by the
relevant Borrower and the relevant Issuing Lender payable on the last day of
each March, June, September and December to such Issuing Lender for the period
from and including the date of issuance of such Letter of Credit to, but not
including, the termination date of such Letter of Credit.
(e) Viacom agrees to pay to each Lender, through the Administrative
Agent, on each Interest Payment Date for ABR Loans, a utilization fee (a
"Utilization Fee") at a rate per annum equal to the Applicable Utilization Fee
Rate for each Excess Utilization Day during the period covered by such Interest
Payment Date on the Facility Exposure of such Lender on such
33
Excess Utilization Day. All Utilization Fees shall be computed on the basis of
the actual number of days elapsed in a year of 360 days and shall be payable in
arrears.
(f) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the relevant Lenders or to the Issuing Lenders. Once paid,
none of the Fees shall be refundable under any circumstances (other than
corrections of errors in payment).
SECTION 2.10. Interest on Loans; Eurodollar Tranches; Etc.
(a) Subject to the provisions of Section 2.11, Eurodollar Loans
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 360 days) at a rate per annum equal to (i) in the case of each
Eurodollar Revolving Credit Loan, the Eurodollar Rate for the Interest Period in
effect for such Loan plus the Applicable Eurodollar Margin and (ii) in the case
of each Eurodollar Competitive Loan, the Eurodollar Rate for the Interest Period
in effect for such Loan plus the Margin offered by the Lender making such Loan
and accepted by the relevant Borrower pursuant to Section 2.3. The Eurodollar
Rate for each Interest Period shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error. The
Administrative Agent shall promptly advise the relevant Borrower and each Lender
of such determination.
(b) Subject to the provisions of Section 2.11, ABR Loans shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 365 or 366 days, as the case may be, when determined by reference to the
Prime Rate and over a year of 360 days at all other times) at a rate per annum
equal to the Alternate Base Rate. The Alternate Base Rate shall be determined by
the Administrative Agent, and such determination shall be conclusive absent
manifest error.
(c) Subject to the provisions of Section 2.11, Quoted Swingline
Loans shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 360 days) at a rate per annum equal to the relevant
Quoted Swingline Rate.
(d) Subject to the provisions of Section 2.11, each Absolute Rate
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed rate
of interest offered by the Lender making such Loan and accepted by the relevant
Borrower pursuant to Section 2.3.
(e) Interest on each Loan shall be payable on each applicable
Interest Payment Date.
(f) Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations, repayments and prepayments of Eurodollar
Revolving Credit Loans hereunder and all selections of Interest Periods
hereunder in respect of Eurodollar Revolving Credit Loans shall be in such
amounts and shall be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of the Eurodollar Revolving
Credit Loans comprising each Eurodollar Tranche shall be equal to $50,000,000 or
a whole multiple of
34
$5,000,000 in excess thereof. Unless otherwise agreed by the Administrative
Agent, in no event shall there be more than 25 Eurodollar Tranches outstanding
at any time.
(g) If no election as to the Type of Revolving Credit Loan is
specified in any notice of borrowing with respect thereto, then the requested
Loan shall be an ABR Loan. If no Interest Period with respect to a Eurodollar
Revolving Credit Loan is specified in any notice of borrowing, conversion or
continuation, then the relevant Borrower shall be deemed to have selected an
Interest Period of one month's duration. The Interest Period with respect to a
Eurodollar Competitive Loan shall in no case be less than one month's duration.
SECTION 2.11. Default Interest.
If all or a portion of the principal amount of any Loan shall not be
paid when due (whether at the stated maturity, by acceleration or otherwise),
all outstanding Loans (whether or not overdue) shall bear interest at a rate per
annum which is equal to the rate that would otherwise be applicable thereto
pursuant to the provisions of Section 2.10 plus 2% and (b) if all or a portion
of any LC Disbursement, any interest payable on any Loan or LC Disbursement or
any Fee or other amount payable hereunder shall not be paid when due (whether at
the stated maturity, by acceleration or otherwise), such overdue amount shall
bear interest at a rate per annum equal to the rate otherwise applicable to ABR
Loans pursuant to Section 2.10(b) plus 2%, in each case, with respect to clauses
(a) and (b) above, from the date of such non-payment until such amount is paid
in full (as well after as before judgment).
SECTION 2.12. Alternate Rate of Interest.
In the event, and on each occasion, that on the day two Business
Days prior to the commencement of any Interest Period for a Eurodollar Loan (i)
the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon each Borrower) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, or (ii) the Required
Lenders shall have determined and shall have notified the Administrative Agent
that the Eurodollar Rate determined or to be determined for such Interest Period
will not adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining Eurodollar Loans during such
Interest Period, the Administrative Agent shall, as soon as practicable
thereafter, give written or telecopy notice of such determination to the
Borrowers and the Lenders. In the event of any such determination, until the
Administrative Agent shall have advised the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any request by a
Borrower for a Eurodollar Competitive Loan pursuant to Section 2.3 to be made
after such determination shall be of no force and effect and shall be denied by
the Administrative Agent, (ii) any request by a Borrower for a Eurodollar
Revolving Credit Loan pursuant to Section 2.4 to be made after such
determination shall be deemed to be a request for an ABR Loan and (iii) any
request by a Borrower for conversion into or a continuation of a Eurodollar
Revolving Credit Loan pursuant to Section 2.8 to be made after such
determination shall have no force and effect (in the case of a requested
conversion) or shall be deemed to be a request for a conversion into an ABR Loan
(in the case of a requested continuation). Also, in the event of any such
determination, the relevant Borrower shall be entitled, in its sole discretion,
if the requested Loan has not been made, to
35
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, Reduction and Increase of Commitments.
(a) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, Viacom may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
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) Viacom shall have the right at any time and from time to time to
increase the Total Commitments to an aggregate amount not to exceed
$1,950,000,000 (i) by requesting that one or more banks or other financial
institutions not a party to this Agreement become a Lender hereunder or (ii) by
requesting that any Lender already party to this Agreement increase the amount
of such Lender's Commitment; provided, that the addition of any bank or
financial institution pursuant to clause (i) above shall be subject to the
consent of the Administrative Agent (which consent shall not be unreasonably
withheld); provided further, the Commitment of any bank or other financial
institution pursuant to clause (i) above, shall be in an aggregate principal
amount at least equal to $10,000,000; provided further, the amount of the
increase of any Lender's Commitment pursuant to clause (ii) above when added to
the amount of such Lender's Commitment before the increase, shall be in an
aggregate principal amount at least equal to $10,000,000.
(d) Any additional bank, financial institution or other entity which
elects to become a party to this Agreement and obtain a Commitment pursuant to
clause (c) of this Section 2.13 above shall execute a New Lender Supplement
(each, a "New Lender Supplement") with Viacom and the Administrative Agent,
substantially in the form of Exhibit G, whereupon such bank, financial
institution or other entity (herein called a "New Lender") shall become a Lender
for all purposes and to the same extent as if originally a party hereto and
shall be bound by and entitled to the benefits of this Agreement, and Schedule
1.1 shall be deemed to be amended to add the name and Commitment of such New
Lender.
36
(e) Any increase in the Total Commitment pursuant to clause (c)(ii)
of this Section 2.13 shall be effective only upon the execution and delivery to
Viacom and the Administrative Agent of a commitment increase letter in
substantially the form of Exhibit H hereto (a "Commitment Increase Letter"),
which Commitment Increase Letter shall be delivered to the Administrative Agent
not less than five Business Days prior to the Commitment Increase Date and shall
specify (i) the amount of the Commitment of any bank or financial institution
not a party to this agreement which is becoming a Lender or the amount of any
increase in the Commitment of any Lender and (ii) the date such increase is to
become effective (the "Commitment Increase Date").
(f) Any increase in the Total Commitment pursuant to this Section
2.13 shall not be effective unless:
(i) no Default or Event of Default shall have occurred and be
continuing on the Commitment Increase Date;
(ii) each of the representations and warranties made by Viacom
and the Subsidiary Borrowers in Sections 3.1, 3.2, 3.4, 3.5 and 3.6
shall be true and correct in all material respects on the Commitment
Increase Date with the same effect as though made on and as of such
date, except to the extent such representations and warranties
expressly relate to an earlier date in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date;
(iii) the Administrative Agent shall have received each of (A)
a certificate of the corporate secretary or assistant secretary of
the Borrowers as to the taking of any corporate action necessary in
connection with such increase and (B) an opinion or opinions of
general counsel to the Borrowers as to their corporate power and
authority to borrow hereunder after giving effect to such increase
and such other matters relating thereto as the Administrative Agent
and its counsel may reasonably request.
Each notice requesting an increase in the Total Commitments pursuant to this
Section 2.13 shall constitute a certification to the effect set forth in clauses
(i) and (ii) of this Section 2.13(f).
(g) No Lender shall at any time be required to agree to a request of
Viacom to increase its Commitment or obligations hereunder.
SECTION 2.14. Optional Prepayments of Revolving Credit Loans.
The relevant Borrower may at any time and from time to time prepay
the Revolving Credit Loans, in whole or in part, without premium or penalty,
upon giving irrevocable written or telecopy notice (or telephone notice promptly
confirmed by written or telecopy notice) to the Administrative Agent: (i) before
10:00 a.m., New York City time, three Business Days prior to prepayment, in the
case of Eurodollar Revolving Credit Loans, and (ii) before 10:00 a.m., New York
City time, one Business Day prior to prepayment, in the case of ABR Revolving
Credit Loans. Such notice shall specify the date and amount of
37
prepayment and whether the prepayment is of Eurodollar Revolving Credit Loans,
ABR Revolving Credit Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each. If a Eurodollar Revolving Credit Loan is
prepaid on any day other than the last day of the Interest Period applicable
thereto, the relevant Borrower shall also pay any amounts owing pursuant to
Section 2.16. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein,
together with (except in the case of ABR Revolving Credit Loans) accrued
interest to such date 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 Eurodollar Loan or
Absolute Rate Loan made by such Lender (other than changes in respect of taxes
imposed on the overall net income of such Lender by the jurisdiction in which
such Lender has its principal office (or in which it holds any Eurodollar Loan
or Absolute Rate Loan) or by any political subdivision or taxing authority
therein and other than taxes that would not have been imposed but for the
failure of such Lender to comply with applicable certification, information,
documentation or other reporting requirements), or shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets of
or deposits with or for the account of such Lender, or shall impose on such
Lender or the London interbank market any other condition affecting this
Agreement or any Eurodollar Loan or Absolute Rate Loan made by such Lender, and
the result of any of the foregoing shall be to increase the cost to such Lender
of making or maintaining any Eurodollar Loan or Absolute Rate Loan or to reduce
the amount of any sum received or receivable by such Lender hereunder (whether
of principal, interest or otherwise) in respect of any Eurodollar Loan or
Absolute Rate Loan by an amount deemed by such Lender to be material, then the
relevant Borrower agrees to pay to such Lender as provided in paragraph (c)
below such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered. Notwithstanding the foregoing,
no Lender shall be entitled to request compensation under this paragraph with
respect to any Competitive Loan if the change giving rise to such request shall,
or in good faith should, have been taken into account in formulating the
Competitive Bid pursuant to which such Competitive Loan shall have been made.
(b) If any Lender or any Issuing Lender shall have determined that
the adoption after the 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
38
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's or Issuing Lender's capital or on the capital of such Lender's
or Issuing Lender's holding company, if any, as a consequence of this Agreement
or the Loans made by such Lender or the LC Exposure of such Lender or Letters of
Credit issued by such Issuing Lender pursuant hereto to a level below that which
such Lender or Issuing Lender or such Lender's or Issuing Lender's holding
company could have achieved but for such applicability, adoption, change or
compliance (taking into consideration such Lender's or Issuing Lender's policies
and the policies of such Lender's or Issuing Lender's holding company with
respect to capital adequacy) by an amount deemed by such Lender or Issuing
Lender to be material, then from time to time Viacom 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 to demand compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital with respect to any
period shall not constitute a waiver of such Lender's right to demand
compensation with respect to any other period. The protection of this Section
2.15 shall be available to each Lender regardless of any possible contention of
the invalidity or inapplicability of the law, rule, regulation, guideline or
other change or condition which shall have occurred or been imposed so long as
it shall be customary for Lenders affected thereby to comply therewith. No
Lender shall be entitled to compensation under this Section 2.15 for any costs
incurred or reductions suffered with respect to any date unless it shall have
notified the relevant Borrower that it will demand compensation for such costs
or reductions under paragraph (c) above not more than 90 days after the later of
(i) such date and (ii) the date on which it shall have become aware of such
costs or reductions. Notwithstanding any other provision of this Section 2.15,
no Lender shall demand compensation for any increased cost or reduction referred
to above if it shall not at the time be the general policy or practice of such
Lender to demand such compensation in similar circumstances under comparable
provisions of other credit agreements, if any. In the event any Borrower shall
reimburse any Lender pursuant to this Section 2.15 for any cost and such Lender
shall subsequently receive a refund in respect thereof, such Lender shall so
notify such Borrower and, upon its request, will pay to such Borrower the
portion of such refund which such Lender shall determine in good faith to be
allocable to the cost so reimbursed. The covenants contained in this Section
2.15 shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
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SECTION 2.16. Indemnity.
Each Borrower agrees to indemnify each Lender against any loss or
expense described below which such Lender may sustain or incur as a consequence
of (a) any failure by such Borrower to fulfill on the date of any borrowing
hereunder the applicable conditions set forth in Article IV, (b) any failure by
such Borrower to borrow, continue or convert any Loan hereunder after
irrevocable notice of such borrowing, continuation or conversion has been given
or deemed given or Competitive Bids have been accepted pursuant to Article II,
(c) any payment, prepayment or conversion of a Eurodollar Loan or Absolute Rate
Loan made to such Borrower required by any other provision of this Agreement or
otherwise made or deemed made, whatever the circumstances may be that give rise
to such payment, prepayment or conversion, or any transfer of any such Loan
pursuant to Section 2.21 or 9.4(b), on a date other than the last day of the
Interest Period applicable thereto, or (d) if any breakage is incurred, any
failure by a Borrower to prepay a Eurodollar Loan on the date specified in a
notice of prepayment; provided, that any request for indemnification made by any
Lender to any Borrower 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 Eurodollar Rate in the case
of Eurodollar 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
40
Administrative Agent such Lender's portion of a borrowing, the Administrative
Agent may assume that such Lender has made such portion available to the
Administrative Agent on the date of such borrowing in accordance with this
Agreement and the Administrative Agent may, in reliance upon such assumption,
make available to the relevant Borrower on such date a corresponding amount. If
and to the extent that such Lender shall not have made such portion available to
the Administrative Agent, each of such Lender and the relevant Borrower agrees
to repay to the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to such Borrower until the date such amount is repaid to the
Administrative Agent at (i) in the case of such Borrower, the interest rate
applicable at the time to the relevant Loan and (ii) in the case of such Lender,
the Federal Funds Effective Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such borrowing for the purposes of this Agreement;
provided, that such repayment shall not release such Lender from any liability
it may have to such Borrower for the failure to make such Loan at the time
required herein.
(c) The failure of any Lender to make any Loan shall not in itself
relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender).
(d) Each Lender may at its option make any Eurodollar Loan by
causing any domestic or foreign branch or 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 (a) giving any
notices contemplated to be given by such Subsidiary Borrower pursuant to this
Agreement, including, without limitation, borrowing notices, prepayment notices,
continuation notices, conversion notices, competitive bid requests and
competitive bid
41
acceptances or rejections and (b) paying on behalf of such Subsidiary Borrower
any Subsidiary Borrower Obligations owing by such Subsidiary Borrower; provided,
that each Subsidiary Borrower shall retain the right, in its discretion, to
directly give any or all of such notices or make any or all of such payments.
(g) The Administrative Agent shall promptly notify the Lenders upon
receipt of any Subsidiary Borrower Designation and Subsidiary Borrower Request.
The Administrative Agent shall promptly notify the Swingline Lenders upon
receipt of any designation of a Subsidiary Borrower as a Swingline Borrower.
SECTION 2.18. Sharing of Setoffs.
Except to the extent that this Agreement provides for payments to be
allocated to Revolving Credit Loans, Swingline Loans or Competitive Loans, as
the case may be, each Lender agrees that if it shall, through the exercise of a
right of banker's lien, setoff or counterclaim against any Borrower, or pursuant
to a secured claim under Section 506 of Title 11 of the United States Code or
other security or interest arising from, or in lieu of, such secured claim,
received by such Lender under any applicable bankruptcy, insolvency or other
similar law or otherwise, or by any other means (other than pursuant to any
provision of this Agreement), obtain payment (voluntary or involuntary) in
respect of any category of its Loans or such Lender's Revolving Credit
Percentage of any LC Disbursement as a result of which the unpaid principal
portion of such Loans or the unpaid portion of such Lender's Revolving Credit
Percentage of the LC Disbursements shall be proportionately less than the unpaid
principal portion of such Loans or the unpaid portion of the Revolving Credit
Percentage of the LC Disbursements of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in
such Loans or the Revolving Credit Percentage of the LC Disbursements of such
other Lender, so that the aggregate unpaid principal amount of such Loans and
participations in such Loans held by each Lender or the Revolving Credit
Percentage of LC Disbursements and participations in LC Disbursements held by
each Lender shall be in the same proportion to the aggregate unpaid principal
amount of all such Loans or LC Disbursements then outstanding as the principal
amount of such Loans or the Revolving Credit Percentage of LC Disbursements of
each Lender prior to such exercise of banker's lien, setoff or counterclaim or
other event was to the principal amount of all such Loans or LC Disbursements
outstanding prior to such exercise of banker's lien, setoff or counterclaim or
other event; provided, however, that, if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.18 and the payment giving
rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest, 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.
42
SECTION 2.19. Payments.
(a) Except as otherwise expressly provided herein, each Borrower
shall make each payment (including principal of or interest on any Loan or any
Fees or other amounts) hereunder without setoff or counterclaim and shall make
each such payment not later than 12:00 noon, New York City time, on the date
when due in Dollars to the Administrative Agent at its offices at The Chase
Manhattan Bank, 270 Park Avenue, New York, New York 10017, in immediately
available funds. Notwithstanding the foregoing, each Borrower shall make each
payment with respect to any Loan denominated in any Foreign 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 Chase Manhattan International Ltd., 9
Thomas Moore Street, London E1-9YT United Kingdom, 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.
43
(c) The relevant Borrower will indemnify each Lender (or Transferee)
and the Administrative Agent for the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed by the applicable jurisdiction on
amounts payable under this Section 2.20) paid by such Lender (or Transferee) or
the Administrative Agent, as the case may be, and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted by
the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days after the date such Lender (or
Transferee) or the Administrative Agent, as the case may be, makes written
demand therefor.
(d) Whenever any Taxes or Other Taxes are payable by any Borrower,
within 30 days thereafter such Borrower shall send to the Administrative Agent
for its own account or for the account of the relevant Lender, as the case may
be, a certified copy of an official receipt received by such Borrower showing
payment thereof (or other evidence of such payment reasonably satisfactory to
the Administrative Agent).
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.20
shall survive the payment in full of the principal of and interest on all Loans
made hereunder and of all other amounts payable hereunder.
(f) Each Lender (or Transferee) that is not a "United States Person"
as defined in Section 7701(a)(30) of the Code (such Lender (or Transferee), a
"Non-U.S. Person") shall deliver to Viacom and the Administrative Agent (or, in
the case of a participant, to the Lender from which the related participation
shall have been purchased) two copies of either U.S. Internal Revenue Service
Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Person claiming
exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest", a Form W-8BEN, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. Person,
claiming an exemption with respect to payments of "portfolio interest", delivers
a Form W-8BEN, an annual certificate representing that such Non-U.S. Person is
not a "bank" for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of Viacom
and is not a controlled foreign corporation related to Viacom (within the
meaning of Section 864(d)(4) of the Code)), properly completed and duly executed
by such Non-U.S. Person claiming complete exemption from U.S. federal
withholding tax on all payments by any Borrower under this Agreement. Such forms
shall be delivered by each Non-U.S. Person promptly after it becomes a party to
this Agreement (or, in the case of any participant, promptly after the date such
participant purchases the related participation). In addition, each Non-U.S.
Person shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Non-U.S. Person. Each Non-U.S. Person
shall promptly notify Viacom at any time it determines that it is no longer in a
position to provide any previously delivered certificate to Viacom (or any other
form of certification adopted by the U.S. taxing authorities for such purpose).
Unless Viacom and the Administrative Agent (or, in the case of a participant,
the Lender from which the related participation shall have been purchased) have
received forms or other documents satisfactory to them indicating that payments
hereunder are not subject to United States withholding tax, the relevant
Borrower or the Administrative Agent shall withhold taxes from such payments at
the applicable statutory rate in the case of payments
44
of interest to or for any Lender (or Transferee) that is a Non-U.S. Person.
Notwithstanding any other provision of this Section 2.20(f), a Non-U.S. Person
shall not be required to deliver any form pursuant to this Section 2.20(f) that
such Non-U.S. Person is not legally able to deliver by reason of the adoption of
any law, rule or regulation, or any change in any law, rule or regulation or in
the interpretation thereof, in each case occurring after the date such Non-U.S.
Person becomes a Lender (or Transferee).
(g) A Lender that is entitled to an exemption from or reduction of
any non-U.S. withholding tax under the law of the jurisdiction in which a
Borrower is located, or under any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to such Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by such Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that such
Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender's reasonable judgment such completion, execution or
submission would not materially prejudice the legal position of such Lender.
(h) No Borrower shall be required to pay any additional amounts to
any Agent or Lender pursuant to paragraph (a) above (i) if the obligation to pay
such additional amounts would not have arisen but for a failure by such Agent or
Lender to comply with the provisions of paragraph (f) or (g) above or (ii) in
the case of a Transferee, to the extent such additional amounts exceed the
additional amounts that would have been payable had no transfer or assignment to
such Transferee occurred; provided, however, that each Borrower shall be
required to pay those amounts to any Agent or Lender (or Transferee) that it was
required to pay hereunder prior to the failure of such Agent or Lender (or
Transferee) to comply with the provisions of such paragraph (f) or (g).
SECTION 2.21. Termination or Assignment of Commitments Under Certain
Circumstances.
(a) Any Lender (or Transferee) claiming any additional amounts
payable pursuant to Section 2.15 or Section 2.20 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-
45
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 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 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 Borrower and the Lenders of
the Dollar equivalent so determined by it. Each such determination shall be
based on the Spot Rate (i) on the date of the related Competitive Bid Request,
for purposes of the initial determination of such Competitive Bid 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 of a drawing thereunder.
(c) If after giving effect to any such determination of a Dollar
equivalent under (a) or (b) above, the Dollar equivalent of (a) or (b) above
exceeds $150,000,000, the Borrower shall within five Business Days, (i), in the
case of an excess determined pursuant to (a) above, prepay outstanding
Competitive Bid Loans in Foreign Currencies to eliminate such excess, (ii), in
the case of an excess determined pursuant to (b) above, prepay (or, at the
relevant Borrower's option, cash collateralize) 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; provided, whether
or not the Dollar equivalent of (a) or (b) above exceeds $150,000,000, if after
giving effect to any such determination of a Dollar equivalent under (a) or (b)
above, the Commitment Utilization Percentage is greater than 110%, the Borrower
shall within five
46
Business Days prepay outstanding Competitive Bid Loans in Foreign Currencies,
prepay (or, at the relevant Borrower's option, cash collateralize) outstanding
Letters of Credit in Foreign Currencies or take such other action to the extent
necessary to eliminate any such excess.
SECTION 2.23. Judgment Currency.
If, for the purpose of obtaining judgment in any court, it is
necessary to convert a sum due from the 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 the 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 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 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:
SECTION 3.1. Corporate Existence.
Each of Viacom and each Material Subsidiary: (a) is a corporation,
partnership or other entity duly organized and validly existing under the laws
of the jurisdiction of its organization; (b) has all requisite corporate or
other power, and has all material governmental licenses, authorizations,
consents and approvals, necessary to own its assets and carry on its business as
now being or as proposed to be conducted, except where the failure to have any
of the foregoing would not result in a Material Adverse Effect; and (c) is
qualified to do business in
47
all jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify would result in a
Material Adverse Effect.
SECTION 3.2. Financial Condition.
The consolidated balance sheet of Viacom and its Consolidated
Subsidiaries as at December 31, 1999, and the related consolidated statements of
income and cash flows of Viacom and its Consolidated Subsidiaries for the fiscal
year ended on such date, with the opinion thereon of PricewaterhouseCoopers LLC,
heretofore furnished to each of the Lenders, fairly present the consolidated
financial condition of Viacom and its Consolidated Subsidiaries as at such date
and the consolidated results of their operations for the fiscal year ended on
such date in accordance with GAAP. Neither Viacom nor any of its Material
Subsidiaries had on such date any known material contingent liability, except as
referred to or reflected or provided for in the Exchange Act Report or in such
balance sheets (or the notes thereto) as at such date.
SECTION 3.3. Litigation.
Except as disclosed to the Lenders in the Exchange Act Report filed
prior to the Closing Date or otherwise disclosed in writing to the Lenders prior
to the Closing Date, there are no legal or arbitral proceedings, or any
proceedings by or before any Governmental Authority, pending or (to the
knowledge of Viacom) threatened against Viacom or any of its Material
Subsidiaries which have resulted in a Material Adverse Effect (it being agreed
that any legal or arbitral proceedings which have been disclosed in the Exchange
Act Report, whether threatened, pending, resulting in a judgment or otherwise,
prior to the time a final judgment for the payment of money shall have been
recorded against Viacom or any Material Subsidiary by any Governmental Authority
having jurisdiction, and the judgment is non-appealable (or the time for appeal
has expired) and all stays of execution have expired or been lifted shall not,
in and of itself, be deemed to result in a Material Adverse Effect). The
"Exchange Act Report" shall mean, collectively, (i) the Annual Report of Viacom
on Form 10-K for the year ended December 31, 1999 and Quarterly Reports on Form
10-Q and Reports on Form 8-K of Viacom filed subsequent to December 31, 1999,
but on or before February 20, 2001, (ii) the Annual Report of CBS Corporation on
Form 10-K for the year ended December 31, 1999 and Quarterly Reports on Form 10-
Q and Reports on Form 8-K of Viacom filed subsequent to December 31, 1999, but
on or before February 20, 2001, and (iii) Reports on Form S-4 filed on October
7, 1999 and November 22, 2000, in each case, as amended or supplemented on or
before February 20, 2001.
SECTION 3.4. No Breach, etc.
None of the execution and delivery of this Agreement, the
consummation of the transactions herein contemplated and compliance with the
terms and provisions hereof will conflict with or result in a breach of, or
require any consent under, the charter or By-laws (or other equivalent
organizational documents) of any Borrower, or any applicable law or regulation,
or any order, writ, injunction or decree of any Governmental Authority, or any
material agreement or instrument to which Viacom or any of its Material
Subsidiaries is a party or by which any of them is bound or to which any of them
is subject, or constitute a default under any such agreement or instrument, or
result in the creation or imposition of any Lien upon any of the revenues or
assets of Viacom or any of its Material Subsidiaries pursuant to the terms of
any
48
such agreement or instrument. Neither Viacom nor any of its Material
Subsidiaries is in default under or with respect to any of its material
contractual obligations in any respect which would have a Material Adverse
Effect.
SECTION 3.5. Corporate Action Each Borrower has all necessary
corporate power and authority to execute, deliver and perform its obligations
under this Agreement; the execution and delivery by each Borrower of this
Agreement (or, in the case of each Subsidiary Borrower, the relevant Subsidiary
Borrower Request), and the performance by each Borrower of this Agreement, have
been duly authorized by all necessary corporate action on such Borrower's part;
this Agreement (or, in the case of each Subsidiary Borrower, the relevant
Subsidiary Borrower Request) has been duly and validly executed and delivered by
each Borrower; and this Agreement constitutes a legal, valid and binding
obligation of each Borrower, enforceable in accordance with its terms except as
such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws of general
applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 3.6. Approvals No authorizations, approvals or consents of,
and no filings or registrations with, any Governmental Authority are necessary
for the execution, delivery or performance by each Borrower of this Agreement or
for the validity or enforceability hereof.
SECTION 3.7. ERISA Viacom and, to the best of its knowledge, its
ERISA Affiliates have fulfilled their respective obligations under the minimum
funding standards of ERISA and the Code with respect to each Plan and are in
compliance in all material respects with the currently applicable provisions of
ERISA and the Code except where any failure or non-compliance would not result
in a Material Adverse Effect.
SECTION 3.8. Taxes.
As of the Amendment Closing Date, United States Federal income tax
returns of or including Viacom have been, to the knowledge of Viacom, examined
and closed through the fiscal year of Viacom ended December 31, 1994. Viacom and
its Material Subsidiaries, to the knowledge of Viacom, have filed all United
States Federal income tax returns and all other material tax returns which are
required to be filed by or in respect of them and have paid or caused to be paid
all taxes shown as due on such returns or pursuant to any assessment received by
Viacom or any of its Material Subsidiaries, except those being contested and
reserved against in accordance with Section 5.2.
49
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.
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) Amended and Restated 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) Termination of Existing Credit Agreements. The Existing Credit
Agreements shall have been paid in full and all obligations thereunder shall
have been terminated.
(d) 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.
(e) Five-Year Credit Agreement and 364-Day Credit Agreement. All
conditions to effectiveness specified in Section 4.1 of the Five-Year Credit
Agreement and Section 4.1 of the 364-Day Credit Agreement shall have been
satisfied.
50
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 Amendment
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. Any Subsidiary designated as a
Subsidiary Borrower by Infinity pursuant to this Agreement prior to the
Amendment Closing Date shall continue to be a Subsidiary Borrower after the
Amendment Closing Date, unless Infinity subsequently delivered a termination of
such Subsidiary Borrower's designation prior to the Amendment Closing Date;
provided, such Subsidiary Borrower shall deliver to the Administrative Agent the
items listed in clause (ii) and (iii) above prior to such Subsidiary Borrower's
initial borrowing after the Amendment Closing Date. Viacom may from time to time
deliver a subsequent Subsidiary Borrower Designation with respect to any
Subsidiary Borrower, countersigned by such Subsidiary Borrower, for the purpose
of terminating such Subsidiary Borrower's designation as such, so long as, on
the effective date of such termination, all Subsidiary Borrower Obligations in
respect of such Subsidiary Borrower shall have been paid in full. In addition,
if on any date a Subsidiary Borrower shall cease to be a Subsidiary, all
Subsidiary Borrower Obligations in respect of such Subsidiary Borrower shall
automatically become due and payable on such date and no further Loans may be
borrowed by such Subsidiary Borrower hereunder.
SECTION 4.3. All Credit Events.
The obligation of each Lender to make each Loan, and the obligation
of each Issuing Lender to issue each Letter of Credit, are subject to the
satisfaction of the following conditions:
(a) The Administrative Agent shall have received a request for, or
notice of, such Credit Event if and as required by Section 2.3, 2.4, 2.6 or 2.7,
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
51
(d) After giving effect to such Credit Event, (i) the Outstanding
Revolving Extensions of Credit of each Lender shall not exceed such Lender's
Commitment then in effect and (ii) the Total Facility Exposure shall not exceed
the Total Commitment then in effect.
Each Credit Event shall be deemed to constitute a representation and warranty by
Viacom on the date of such Credit Event as to the matters specified in
paragraphs (b) and (c) of this Section 4.3.
ARTICLE V
COVENANTS
Viacom covenants and agrees with each Lender that, as long as the
Commitments shall be in effect or the principal of or interest on any Loan shall
be unpaid, or there shall be any Aggregate LC Exposure, unless the Required
Lenders shall otherwise consent in writing:
SECTION 5.1. Financial Statements.
Viacom shall deliver to each of the Lenders:
(a) within 60 days after the end of each of the first three
quarterly fiscal periods of each fiscal year of Viacom, consolidated statements
of income and cash flows of Viacom and its Consolidated Subsidiaries for such
period and for the period from the beginning of the respective fiscal year to
the end of such period, and the related consolidated balance sheet as at the end
of such period, setting forth in each case in comparative form the corresponding
consolidated figures for the corresponding period in the preceding fiscal year,
accompanied by a certificate of a Financial Officer of Viacom which certificate
shall state that such financial statements fairly present the consolidated
financial condition and results of operations of Viacom and its Consolidated
Subsidiaries in accordance with GAAP as at the end of, and for, such period,
subject to normal year-end audit adjustments; provided, that the requirement
herein for the furnishing of such quarterly financial statements may be
fulfilled by providing to the Lenders the report of Viacom to the SEC on Form
10-Q for the applicable quarterly period, accompanied by the officer's
certificate described in the last sentence of this Section 5.1;
(b) within 120 days after the end of each fiscal year of Viacom,
consolidated statements of income and cash flows of Viacom and its Consolidated
Subsidiaries for such year and the related consolidated balance sheet as at the
end of such year, setting forth in comparative form the corresponding
consolidated figures for the preceding fiscal year, and accompanied by an
opinion thereon (unqualified as to the scope of the audit) of independent
certified public accountants of recognized national standing, which opinion
shall state that such consolidated financial statements fairly present the
consolidated financial condition and results of operations of Viacom and its
Consolidated Subsidiaries as at the end of, and for, such fiscal year; provided,
that the requirement herein for the furnishing of annual financial statements
may be fulfilled by providing to the Lenders the report of Viacom to the SEC on
Form 10-K for the applicable fiscal year;
(c) promptly upon their becoming publicly available, copies of all
registration statements and regular periodic reports (including without
limitation any and all reports on Form
52
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;
(iii) the institution by PBGC of proceedings under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by Viacom or any ERISA Affiliate of a
notice from a Multiemployer Plan that such action has been taken by PBGC
with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal by Viacom or any ERISA
Affiliate under Section 4201 or 4204 of ERISA from a Multiemployer Plan,
or the receipt by Viacom or any ERISA Affiliate of notice from a
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against Viacom or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within 30 days;
and
(vi) a failure to make a required installment or other payment with
respect to a Plan (within the meaning of Section 412(n) of the Code), in
which case the notice required hereunder shall be provided within 10 days
after the due date for filing notice of such failure with the PBGC;
53
(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 the electronic mail address
provided by such Lender and/or (ii) through access to a web site, including,
without limitation, www.sec.gov.
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
54
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 Subsidiaries taken as a whole, whether now owned or hereafter
acquired (excluding (x) financings by way of sales of receivables or inventory,
(y) inventory or other Property Disposed of in the ordinary course of business
and (z) obsolete or worn-out Property, tools or equipments no longer used or
useful in its business). Notwithstanding the foregoing provisions of this
Section 5.4:
(a) Viacom may consummate the Blockbuster Event;
(b) any Subsidiary of Viacom may be merged or consolidated with or
into: (i) Viacom if Viacom shall be the continuing or surviving corporation or
(ii) any other such Subsidiary; provided, that (x) if any such transaction shall
be between a Subsidiary and a Wholly Owned Subsidiary, such Wholly Owned
Subsidiary shall be the continuing or surviving corporation and (y) if any such
transaction shall be between a Subsidiary and a Subsidiary Borrower, the
continuing or surviving corporation shall be a Subsidiary Borrower;
55
(c) any Subsidiary of Viacom may distribute, dividend or Dispose of
any of or all its Property (upon voluntary liquidation or otherwise) to Viacom
or a Wholly Owned Subsidiary of Viacom;
(d) Viacom may merge or consolidate with or into any other Person
(including, without limitation, Viacom International) if (i) either (x) Viacom
is the continuing or surviving corporation or (y) the corporation formed by such
consolidation or into which Viacom is merged shall be a corporation organized
under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume the obligations of Viacom
hereunder pursuant to a written agreement and shall have delivered to the
Administrative Agent such agreement and a certificate of a Responsible Officer
and an opinion of counsel to the effect that such merger or consolidation
complies with this Section 5.4(c), and (ii) after giving effect thereto and to
any repayment of Loans to be made upon consummation thereof (it being expressly
understood that no repayment of Loans is required solely by virtue thereof), no
Default or Event of Default shall have occurred and be continuing;
(e) any Subsidiary of Viacom may merge or consolidate with or into
any other Person if, after giving effect thereto and to any repayment of Loans
to be made upon the consummation thereof (it being expressly understood that,
except as otherwise expressly provided in Section 4.2 with respect to Subsidiary
Borrowers, no repayment of Loans is required solely by virtue thereof), no
Default or Event of Default shall have occurred and be continuing; and
(f) Viacom or any Subsidiary of Viacom may Dispose of its Property
if, after giving effect thereto and to any repayment of Loans to be made upon
the consummation thereof (it being expressly understood that, except as
otherwise expressly provided in Section 4.2 with respect to Subsidiary
Borrowers, no repayment of Loans is required solely by virtue thereof), no
Default or Event of Default shall have occurred and be continuing.
SECTION 5.5. Limitation on Liens.
Viacom shall not, directly or indirectly, create or suffer to exist,
or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or
with respect to any of its Properties, whether now owned or hereafter acquired,
or assign, or permit any of its Subsidiaries to assign, any right to receive
income, in each case to secure or provide for the payment of any Indebtedness of
any Person, except:
(a) purchase money Liens or purchase money security interests upon
or in any Property acquired or held by Viacom or any Subsidiary of Viacom in the
ordinary course of business to secure the purchase price of such Property or to
secure Indebtedness incurred solely for the purpose of financing the acquisition
of such Property;
(b) Liens existing on Property at the time of its acquisition (other
than any such Lien created in contemplation of such acquisition);
(c) Liens on Property of Persons which become or became Subsidiaries
securing Indebtedness existing, with respect to any such Person, on the date
such Person becomes or
56
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 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 Five-Year Credit Agreement or under the 364-Day Credit
Agreement;
(e) Indebtedness outstanding on the Closing Date, with such
Indebtedness outstanding as of September 30, 2000 being set forth on Schedule
5.6;
(f) any replacement, renewal, refinancing or extension of any
Indebtedness permitted by Section 5.6(a) through (d) or set forth on Schedule
5.6 that does not exceed the aggregate principal amount (plus associated fees
and expenses) of the Indebtedness being replaced, renewed, refinanced or
extended (except that accrued and unpaid interest may be part of any
refinancing); and
(g) Indebtedness incurred after the Closing Date; provided, that
after giving effect thereto the aggregate principal amount of Indebtedness
incurred pursuant to this paragraph (g) that is outstanding on such date (it
being understood that, for the purposes of this paragraph (g), the term
"Indebtedness" does not include Indebtedness excepted by any of clauses (a)
through (f) inclusive) does not exceed the greater of (i) an aggregate principal
amount in excess of 5% of Consolidated Tangible Assets (measured by reference to
the then latest financial statements delivered pursuant to Section 5.1(a) or
(b), as applicable) and (ii) $800,000,000 at any time.
57
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 Amendment Closing Date, each Borrower will use the
proceeds of the Loans and will use the Letters of Credit hereunder solely for
general corporate purposes, including, without limitation, acquisitions and
commercial paper backup (in each case in compliance with all applicable legal
and regulatory requirements, including, without limitation, Regulation U and the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as
amended, and the regulations thereunder); provided, that neither any Agent nor
any Lender shall have any responsibility as to the use of any of such proceeds.
SECTION 5.9. Transactions with Affiliates.
Excepting transactions directly or indirectly entered into pursuant
to any agreement entered into prior to the Amendment Closing Date, or
transactions contemplated by any agreement directly or indirectly entered into
prior to the Amendment Closing Date, Viacom will not, and will not permit any of
its Material Subsidiaries to, directly or indirectly enter into any material
transaction with any Affiliate of Viacom except on terms at least as favorable
to Viacom or such Subsidiary as it could obtain on an arm's-length basis.
ARTICLE VI
EVENTS OF DEFAULT.
In case of the happening of any of the following events ("Events of
Default"):
(a) (i) any Borrower shall default in the payment when due of any
principal of any Loan or (ii) any Borrower shall default in the payment when due
of any interest on any Loan, any reimbursement obligation in respect of any LC
Disbursement, any Fee or any other amount payable by it hereunder and, in the
case of this clause (ii), such default shall continue unremedied for a period of
five Business Days;
(b) any representation, warranty or certification made or deemed
made herein (or in any modification or supplement hereto) by any Borrower, or
any certificate furnished to any Lender or the Administrative Agent pursuant to
the provisions hereof, shall prove to have been false or misleading in any
material respect as of the time made, deemed made or furnished;
(c) (i) Viacom shall default in the performance of any of its
obligations under Sections 5.7 or 5.8, (ii) Viacom shall default in the
performance of any of its obligations under Section 5.4 and, in the case of this
clause (ii), such default shall continue unremedied for a period of 5 days after
notice thereof to Viacom by the Administrative Agent or the Required Lenders
(through the Administrative Agent), or (iii) Viacom shall default in the
performance of any of its other obligations under this Agreement and, in the
case of this clause (iii), such default shall
58
continue unremedied for a period of 15 days after notice thereof to Viacom by
the Administrative Agent or the Required Lenders (through the Administrative
Agent);
(d) Viacom or any of its Subsidiaries shall (i) fail to pay at final
maturity any Indebtedness in an aggregate amount in excess of $250,000,000, or
(ii) fail to make any payment (whether of principal, interest or otherwise),
regardless of amount, due in respect of, or fail to observe or perform any other
term, covenant, condition or agreement contained in any agreement or instrument
evidencing or governing, any such Indebtedness, in excess of $250,000,000 if the
effect of any failure referred to in this clause (ii) has caused such
Indebtedness to become due prior to its stated maturity (it being agreed that
for purposes of this paragraph (d) only, the term "Indebtedness" shall include
obligations under any interest rate protection agreement, foreign currency
exchange agreement or other interest or exchange rate hedging agreement and that
the amount of any Person's obligations under any such agreement shall be the net
amount that such Person could be required to pay as a result of a termination
thereof by reason of a default thereunder);
(e) Viacom or any of its Material Subsidiaries shall admit in
writing its inability, or be generally unable, to pay its debts as such debts
become due;
(f) Viacom or any of its Material Subsidiaries shall (i) apply for
or consent to the appointment of, or the taking of possession by, a receiver,
trustee or liquidator of itself or of all or a substantial part of its Property,
(ii) make a general assignment for the benefit of its creditors, (iii) commence
a voluntary case under the Bankruptcy Code (as now or hereafter in effect), (iv)
file a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
readjustment of debts, (v) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code, or (vi) take any corporate action
for the purpose of effecting any of the foregoing;
(g) a proceeding or a case shall be commenced, without the
application or consent of Viacom or any of its Material Subsidiaries, in any
court of competent jurisdiction, seeking (i) its liquidation, reorganization,
dissolution or winding-up, or the composition or readjustment of its debts, (ii)
the appointment of a trustee, receiver, custodian, liquidator or the like of
Viacom or such Material Subsidiary or of all or any substantial part of its
assets or (iii) similar relief in respect of Viacom or such Material Subsidiary
under any law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in effect, for a period of
60 or more days; or an order for relief against Viacom or such Material
Subsidiary shall be entered in an involuntary case under the Bankruptcy Code;
(h) a final judgment or judgments for the payment of money in excess
of $250,000,000 in the aggregate shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against Viacom
and/or any of its Material Subsidiaries and the same shall not be paid or
discharged (or provision shall not be made for such discharge), or a stay of
execution thereof shall not be procured, within 60 days from the date of the
date of entry thereof and Viacom or the relevant Material Subsidiary shall not,
within said period of 60 days,
59
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 all payments of
principal of and interest on the Loans and the LC Disbursements and all other
amounts due to the Lenders and Issuing Lenders hereunder, and promptly to
distribute to each Lender and Issuing Lender its proper share of each payment so
received; (b) to give notice on behalf of each of the Lenders to the Borrowers
of any Event of Default specified in this Agreement of which the Administrative
Agent has actual knowledge acquired in connection with its agency hereunder; and
(c) to distribute to each Lender and Issuing Lender copies of all notices,
financial statements and other materials delivered by any Borrower pursuant to
this Agreement as received by the Administrative Agent.
Neither any Agent nor any of its directors, officers, employees or
agents shall be liable as such for any action taken or omitted by any of them
except for its or his own gross negligence or 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.
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The Lenders and the Issuing Lenders hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement unless
it shall be requested in writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying the Lenders, the Issuing 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 Documentation Agent, the Co-Syndication Agents, the Lead
Arranger 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
63
this Section 8.1 shall in no event exceed the amount which can be guaranteed by
Viacom under applicable law.
(b) No Subrogation, etc. Notwithstanding any payment or payments
made by Viacom hereunder, or any set-off or application of funds of Viacom by
the Administrative Agent or any Lender, Viacom shall not be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against any Subsidiary Borrower or against any collateral security or guarantee
or right of offset held by the Administrative Agent or any Lender for the
payment of the Subsidiary Borrower Obligations, nor shall Viacom seek or be
entitled to seek any contribution, reimbursement, exoneration or indemnity from
or against any Subsidiary Borrower in respect of payments made by Viacom
hereunder, until all amounts owing to the Administrative Agent and the Lenders
by the Subsidiary Borrowers on account of the Subsidiary Borrower Obligations
are paid in full and the Commitments are terminated. So long as the Subsidiary
Borrower Obligations remain outstanding, if any amount shall be paid by or on
behalf of any Subsidiary Borrower or any other Person to Viacom on account of
any of the rights waived in this Section 8.1, such amount shall be held by
Viacom in trust, segregated from other funds of Viacom, and shall, forthwith
upon receipt by Viacom, be turned over to the Administrative Agent in the exact
form received by Viacom (duly indorsed by Viacom to the Administrative Agent, if
required), to be applied against the Subsidiary Borrower Obligations, whether
matured or unmatured, in such order as the Administrative Agent may determine.
(c) Amendments, etc. with respect to the Subsidiary Borrower
Obligations. Viacom shall remain obligated under this Section 8.1
notwithstanding that, without any reservation of rights against Viacom, and
without notice to or further assent by Viacom, any demand for payment of or
reduction in the principal amount of any of the Subsidiary Borrower Obligations
made by the Administrative Agent or any Lender may be rescinded by the
Administrative Agent or such Lender, and any of the Subsidiary Borrower
Obligations continued, and the Subsidiary Borrower Obligations, or the liability
of any other party upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or any
Lender, and this Agreement and any other documents executed and delivered in
connection herewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Required Lenders (or all Lenders, as the case may be)
may deem advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by the Administrative Agent or any Lender for
the payment of the Subsidiary Borrower Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Administrative Agent nor any Lender
shall have any obligation to protect, secure, perfect or insure any lien at any
time held by it as security for the Subsidiary Borrower Obligations or for the
guarantee contained in this Section 8.1 or any property subject thereto.
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(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 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
65
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 Chase Manhattan International Ltd., 9 Thomas Moore
Street, London E1-9YT United Kingdom, in immediately available funds.
SECTION 8.2. Viacom International Guarantee.
(a) Guarantee. In order to induce the Administrative Agent and the
Lenders to become bound by this Agreement and to make the Loans hereunder to
Viacom, and in consideration thereof, Viacom International hereby
unconditionally and irrevocably guarantees, as primary obligor and not merely as
surety, to the Administrative Agent, for the ratable benefit of the Lenders, the
prompt and complete payment and performance by Viacom when due (whether at
stated maturity, by acceleration or otherwise) of the Viacom Obligations, and
Viacom International further agrees to pay any and all expenses (including,
without limitation, all reasonable fees, charges and disbursements of counsel)
which may be paid or incurred by the Administrative Agent or by the Lenders in
enforcing, or obtaining advice of counsel in respect of, any of their rights
under the guarantee contained in this Section 8.2(a). The guarantee contained in
this Section 8.2(a), subject to Section 8.2(e), shall remain in full force and
effect until the Viacom Obligations are paid in full and the Commitments are
terminated, notwithstanding that from time to time prior thereto Viacom may be
free from any Viacom Obligations. Viacom International agrees that whenever, at
any time, or from time to time, it shall make any payment to the Administrative
Agent or any Lender on account of its liability under this Section 8.2, it will
notify the Administrative Agent and such Lender in writing that such payment is
made under the guarantee contained in this Section 8.2 for such purpose. No
payment or payments made by Viacom or any other Person or received or collected
by the Administrative Agent or any Lender from Viacom or any other Person by
virtue of any action or proceeding or any setoff or appropriation or
application, at any time or from time to time, in reduction of or in payment of
the Viacom Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of Viacom International under this Section 8.2 which,
notwithstanding any such payment or payments, shall remain liable for the unpaid
and outstanding Viacom Obligations until, subject to Section 8.2(e), the Viacom
Obligations are paid in full and the Commitments are terminated. Notwithstanding
any other provision herein, the maximum liability of Viacom International under
this Section 8.2 shall in no event exceed the amount which can be guaranteed by
Viacom International under applicable law.
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(b) No Subrogation, etc. Notwithstanding any payment or payments
made by Viacom International hereunder, or any set-off or application of funds
of Viacom International by the Administrative Agent or any Lender, Viacom
International shall not be entitled to be subrogated to any of the rights of the
Administrative Agent or any Lender against Viacom or against any collateral
security or guarantee or right of offset held by the Administrative Agent or any
Lender for the payment of the Viacom Obligations, nor shall Viacom International
seek or be entitled to seek any contribution, reimbursement, exoneration or
indemnity from or against Viacom in respect of payments made by Viacom
International hereunder, until all amounts owing to the Administrative Agent and
the Lenders by Viacom on account of the Viacom Obligations are paid in full and
the Commitments are terminated. So long as the Viacom Obligations remain
outstanding, if any amount shall be paid by or on behalf of Viacom or any other
Person to Viacom International on account of any of the rights waived in this
Section 8.2, such amount shall be held by Viacom International in trust,
segregated from other funds of Viacom International, and shall, forthwith upon
receipt by Viacom International, be turned over to the Administrative Agent in
the exact form received by Viacom International (duly indorsed by Viacom
International to the Administrative Agent, if required), to be applied against
the Viacom Obligations, whether matured or unmatured, in such order as the
Administrative Agent may determine.
(c) Amendments, etc. with respect to the Viacom Obligations. Viacom
International shall remain obligated under this Section 8.2 notwithstanding
that, without any reservation of rights against Viacom International, and
without notice to or further assent by Viacom International, any demand for
payment of or reduction in the principal amount of any of the Viacom Obligations
made by the Administrative Agent or any Lender may be rescinded by the
Administrative Agent or such Lender, and any of the Viacom Obligations
continued, and the Viacom Obligations, or the liability of any other party upon
or for any part thereof, or any collateral security or guarantee therefor or
right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Lender, and this
Agreement and any other documents executed and delivered in connection herewith
may be amended, modified, supplemented or terminated, in whole or in part, as
the Required Lenders (or all Lenders, as the case may be) may deem advisable
from time to time, and any collateral security, guarantee or right of offset at
any time held by the Administrative Agent or any Lender for the payment of the
Viacom Obligations may be sold, exchanged, waived, surrendered or released.
Neither the Administrative Agent nor any Lender shall have any obligation to
protect, secure, perfect or insure any lien at any time held by it as security
for the Viacom Obligations or for the guarantee contained in this Section 8.2 or
any property subject thereto.
(d) Guarantee Absolute and Unconditional. Viacom International
waives any and all notice of the creation, renewal, extension or accrual of any
of the Viacom Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon the guarantee contained in this Section
8.2 or
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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 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
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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 Chase Manhattan
International Ltd., 9 Thomas Moore Street, London E1-9YT United Kingdom, 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., 1515 Broadway, New York, New
York 10036, Attention of Vice President and Treasurer (Telecopy No. (212)
860-2341), with a copy to General Counsel (Telecopy No. (212) 975-9856);
(b) if to Viacom International, to it c/o Viacom Inc., 1515
Broadway, New York, New York 10036, Attention of Vice President and Treasurer
(Telecopy No. (212) 860-2341), with a copy to General Counsel (Telecopy No.
(212) 975-9856);
(c) if to the Administrative Agent, to it at The Chase Manhattan
Bank, 270 Park Avenue, New York, New York 10017, Attention: William Rottino
(Telecopy No. 212-270-1204), with a copy to The Chase Manhattan Bank, One Chase
Manhattan Plaza, New York, New York, 10080, Attention: Camille Wilson (Telecopy
No. 212-552-5700);
(d) if to any Issuing Lender, to it at the address for notices
specified in the applicable Issuing Lender Agreement;
(e) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 1.1 or in the Assignment and Acceptance pursuant to which such
Lender shall have become a party hereto; and
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(f) if to a Subsidiary Borrower, to it at its address set forth in
the relevant Subsidiary Borrower Request.
Notwithstanding the foregoing, each of Viacom, any other Borrower, the
Administrative Agent and the Issuing Lender may, in its discretion, provide any
notice, report or other information to be provided under this Agreement to a
Lender by (i) electronic mail to the electronic mail address provided by such
Lender in its Administrative Questionnaire and/or (ii) through access to a web
site. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on (A) the date of receipt if delivered by hand or overnight courier
service or sent by telecopy or electronic mail, (B) the date of posting if given
by web site access, (C) the date of such telephone call, if permitted by the
terms hereof and if promptly confirmed in writing, or (D) on the date five
Business Days after dispatch by registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this
Section 9.1 or in accordance with the latest unrevoked direction from such party
given in accordance with this Section 9.1.
SECTION 9.2. Survival of Agreement.
All representations and warranties made hereunder and in any
certificate delivered pursuant hereto or in connection herewith shall be
considered to have been relied upon by the Agents and the Lenders and shall
survive the execution and delivery of this Agreement and the making of the Loans
and other extensions of credit hereunder, regardless of any investigation made
by the Agents or the Lenders or on their behalf.
SECTION 9.3. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of
each Borrower, each Agent and each Lender and their respective successors and
assigns, except that Viacom shall not have the right to assign its rights or
obligations hereunder or any interest herein without the prior consent of all
the Lenders.
SECTION 9.4. Successors and Assigns.
(a) Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and assigns of such
party, and all covenants, promises and agreements by or on behalf of each
Borrower, any Agent or any Lender that are contained in this Agreement shall
bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion
of its interests, rights and obligations under this Agreement (including all or
a portion of its Commitment or Swingline Commitment and the Loans at the time
owing to it); provided, however, that (i) except in the case of an assignment to
a Lender or a Lender Affiliate (other than if at the time of such assignment,
such Lender or Lender Affiliate would be entitled to require any Borrower to pay
greater amounts under Section 2.20(a) than if no such assignment had occurred,
in which case such assignment shall be subject to the consent requirement of
this clause (i)), Viacom and the Administrative Agent must give their prior
written consent to such assignment (which consent shall not be unreasonably
withheld or delayed), (ii) (x) except in the
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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 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, 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.
(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
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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 and the Administrative
Agent to such assignment, the Administrative Agent shall (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to Viacom.
(f) Each Lender may without the consent of any Borrower or the
Agents sell participations to one or more banks, other financial institutions or
other entities (provided, that any such other entity is a not a competitor of
Viacom or any Affiliate of Viacom) all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitments
and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (ii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.15, 2.16 and 2.20 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
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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 or the Administrative Agent; provided,
that each such assignment shall be made in accordance with applicable law and no
such assignment shall release a Lender from any of its obligations hereunder. In
order to facilitate any such assignment, each Borrower shall, at the request of
the assigning Lender, duly execute and deliver to the assigning Lender a
registered promissory note or notes evidencing the Loans made to such Borrower
by the assigning Lender hereunder.
(i) Notwithstanding anything to the contrary contained herein, any
Bank (a "Granting Bank") may grant to a special purpose funding vehicle (a
"SPC"), identified as such in writing from time to time by the Granting Bank to
the Administrative Agent and the relevant Borrower, the option to provide to
such Borrower all or any part of any Loan that such Granting Bank would
otherwise be obligated to make to such Borrower pursuant to this Agreement;
provided, that (i) nothing herein shall constitute a commitment by any SPC to
make any Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Bank shall
be obligated to make such Loan pursuant to the terms hereof. The making of a
Loan by an SPC hereunder shall utilize the Commitment of the Granting Bank to
the same extent, and as if, such Loan were made by such Granting Bank. Each
party hereto hereby agrees that no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for which shall
remain with the Granting Bank). In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior indebtedness
of any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereof. In addition, notwithstanding anything to the contrary contained
in this Section, any SPC may (i) with notice to, but without the prior written
consent of, the relevant Borrower and the Administrative Agent and without
paying any processing fee therefor, assign all or a
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portion of its interests in any Loans to the Granting Bank or to any financial
institutions (consented to by such Borrower and the Administrative Agent )
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC. This section may not be amended without the
written consent of any SPC which has been identified as such by the Granting
Bank to the Administrative Agent and the relevant Borrower and which then holds
any Loan pursuant to this paragraph (i).
(j) Neither Viacom nor any Subsidiary Borrower shall assign or
delegate any of its rights or duties hereunder without the prior consent of all
the Lenders; provided, Viacom may assign or delegate any of its rights or duties
hereunder (excepting its rights and duties pursuant to Section 8.1) to any
Subsidiary Borrower and any Subsidiary Borrower may assign or delegate any of
its rights or duties hereunder to Viacom or (excepting Viacom International's
rights and duties pursuant to 8.2) to any other Subsidiary Borrower, in each
case without the prior consent of the Lenders unless such assignment would
adversely affect the Lenders; provided, further, Viacom may and any Subsidiary
Borrower may assign or delegate any of its rights and duties hereunder pursuant
to a merger or consolidation permitted by Section 5.4(b) or (d) without the
prior consent of the Lenders.
SECTION 9.5. Expenses; Indemnity.
(a) Viacom agrees to pay all reasonable legal and other out-of-
pocket expenses incurred by JP Morgan, a division of Chase Securities Inc., in
its capacity as a Lead Arranger, and by the Administrative Agent and their
respective affiliates in connection with the preparation, negotiation, execution
and delivery of this Agreement or in connection with any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions hereby contemplated shall be consummated) or incurred by any Agent,
any Lender or any Issuing Lender in connection with the enforcement or
protection of the rights of the Agents, the Lenders or the Issuing Lenders under
this Agreement or in connection with the Loans made or the Letters of Credit
issued hereunder, including, without limitation, the reasonable fees, charges
and disbursements of Simpson Thacher & Bartlett (as set forth the in the Letter
Agreement, dated as of February 2, 2001, between Simpson Thacher & Bartlett and
Viacom), counsel for JP Morgan, a division of Chase Securities Inc., in its
capacity as a Lead Arranger, 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
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use (or proposed use) of the proceeds of the Loans or other extensions of credit
hereunder, including, without limitation, Losses consisting of reasonable legal,
settlement or other expenses incurred in connection with investigating,
defending or participating in any legal proceeding relating to any of the
foregoing (whether or not such Indemnified Person is a party thereto); provided,
that the foregoing will not apply to any Losses to the extent they are found by
a final decision of a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of such Indemnified Person. No
Indemnified Person shall be liable for any damages arising from the use by
others of Information or other materials obtained through electronic,
telecommunications or other information transmission systems (provided, that the
foregoing will not apply to any Losses to the extent they are found by a final
decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Indemnified Person).
(c) The provisions of this Section 9.5 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf of any
Agent or Lender. All amounts under this Section 9.5 shall be payable on written
demand therefor.
SECTION 9.6. Right of Setoff.
If an Event of Default shall have occurred and be continuing, each
Agent and each Lender is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Agent or Lender to or for the
credit or the account of any Borrower against any of and all the obligations of
such Borrower now or hereafter existing under this Agreement or the
Administrative Agent Fee Letter held by such Agent or Lender which shall be due
and payable. The rights of each Agent and each Lender under this Section 9.6 are
in addition to other rights and remedies (including other rights of setoff)
which such Agent or Lender may have.
SECTION 9.7. APPLICABLE LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.8. Waivers; Amendment.
(a) No failure or delay of any Agent, any Issuing Lender or any
Lender in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or 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
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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; or (iii) amend, modify or waive any provision of Article VII
without the prior written consent of each Agent affected thereby; provided,
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent, the Swingline Lenders or the
Issuing Lenders hereunder in such capacity without the prior written consent of
the Administrative Agent, each Swingline Lender directly affected thereby or
each Issuing Lender directly affected thereby, as the case may be.
SECTION 9.9. Entire Agreement.
This Agreement (together with the Issuing Lender Agreements, the
Subsidiary Borrower Designations and the Subsidiary Borrower Requests)
constitutes the entire contract between the parties relative to the subject
matter hereof. Any previous agreement among the parties with respect to the
subject matter hereof is superseded by this Agreement. Nothing in this
Agreement, expressed or implied, is intended to confer upon any party other than
the parties hereto any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
SECTION 9.10. Waiver of Jury Trial.
Each party hereto hereby waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in respect of any
litigation directly or indirectly arising out of, under or in connection with
this Agreement. Each party hereto (a) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver and (b) acknowledges that it and the other parties hereto have been
induced to enter into this Agreement by, among other things, the mutual waivers
and certifications in this Section 9.10.
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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 1515 Broadway, New York, New York 10036, as its
agent to receive service of any and all process and documents on its behalf in
any legal action or proceeding referred to in this Section 9.14 in the State of
New York and agrees that service upon such agent shall constitute valid and
effective service upon such Subsidiary Borrower and that failure of Viacom to
give any notice of such service to any Subsidiary Borrower shall not affect or
impair in any way the validity of such service or of any judgment rendered in
any action or proceeding based thereon. Nothing in this Agreement shall affect
any right that any Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against any Borrower or its Properties in
the courts of any jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any New York State or
Federal court. Each of the parties hereto hereby irrevocably waives, to
77
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 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.
78
(c) Notwithstanding anything to the contrary contained in this
Section 9.15, each Agent and each Lender shall be entitled to retain all
Confidential Information for so long as it remains an Agent or a Lender to use
solely for the purposes of servicing the credit and protecting its rights
hereunder.
SECTION 9.16. Waiver of Notice of Termination Period.
By its execution of this Agreement, each Lender hereby waives any
right to notice of termination, or any notice period with respect to the
termination, of any Existing Credit Agreement that such Lender may have had
under such Existing Credit Agreement.
[Remainder of the page left blank intentionally; Signature page to follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
VIACOM INC.
By: /s/ Robert G. Freedline
----------------------------------------
Name: Robert G.Freedline
Title: Vice President and Treasurer
VIACOM INTERNATIONAL INC.
By: /s/ Robert G. Freedline
----------------------------------------
Name: Robert G.Freedline
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/ Thomas H. Kozlark
----------------------------------------
Name: Thomas H. Kozlark
Title: Vice President
FLEET NATIONAL BANK, as Co-Syndication
Agents and as a Lender
By: /s/ Laura Neenan
----------------------------------------
Name: Laura Neenan
Title: Assistant Vice President
BANK OF AMERICA, N.A., as Co-Syndication
Agents and as a Lender
By: /s/ Thomas J. Kane
----------------------------------------
Name: Thomas J. Kane
Title: Vice President
BANK OF NEW YORK, as Documentation Agent
and as a Lender,
By: /s/ John R. Ciulla
----------------------------------------
Name: John R. Ciulla
Title: Vice President
BARCLAYS BANK PLC, as a Lender,
By: /s/ Daniele Iacovone
----------------------------------------
Name: Daniele Iacovone
Title: Director
CITIBANK, N.A., as a Lender,
By: /s/ Elizabeth H. Minnella
----------------------------------------
Name: Elizabeth H. Minnella
Title: Vice President
DEUTSCHE BANK A.G., NEW YORK BRANCH
and/or CAYMAN ISLANDS BRANCH, as a Lender,
By: /s/ William W. McGinty
----------------------------------------
Name: William W. McGinty
Title: Director
By: /s/ Irene Egues
----------------------------------------
Name: Irene Egues
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH, as a Lender,
By: /s/ William Kennedy
----------------------------------------
Name: William Kennedy
Title: Senior Vice President
MELLON BANK, N.A., as a Lender,
By: /s/ Raghunatha Reddy
----------------------------------------
Name: Raghunatha Reddy
Title: Lending Officer
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH, as a Lender,
By: /s/ Lucie L. Guernsey
----------------------------------------
Name: Lucie L. Guernsey
Title: Director
By: /s/ Pascal Kabemba
----------------------------------------
Name: Pascal Kabemba
Title: Associate Director
MERRILL LYNCH CAPITAL CORPORATION,
as a Lender,
By: /s/ Paul Fox
----------------------------------------
Name: Paul Fox
Title: Vice President
LEHMAN COMMERCIAL PAPER INC., as a Lender,
By: /s/ G. Andrew Keith
----------------------------------------
Name: G. Andrew Keith
Title: Authorized Signatory
THE SANWA BANK, LIMITED, NEW YORK BRANCH,
as a Lender,
By: /s/ Jean-Michel Fatovic
----------------------------------------
Name: Jean-Michel Fatovic
Title: Vice President
THE SUMITOMO BANK, LIMITED, as a Lender,
By: /s/ C. Michael Garrido
----------------------------------------
Name: C. Michael Garrido
Title: Senior Vice President
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MERRILL LYNCH BANK USA, as a Lender,
By: /s/ Raymond J. Dardano
----------------------------------------
Name: Raymond J. Dardano
Title: Senior Credit Officer
BANK ONE, NA, as a Lender,
By: /s/ Curtis R. Worthington
----------------------------------------
Name: Curtis R. Worthington
Title: Corporate Banking Officer
CREDIT SUISSE FIRST BOSTON, as a Lender,
By: /s/ Kristin Lepri
----------------------------------------
Name: Kristin Lepri
Title: Associate
By: /s/ Bill O'Daly
----------------------------------------
Name: Bill O'Daly
Title: Vice President
THE NORINCHUKIN BANK, NEW YORK BRANCH,
as a Lender,
By: /s/ Yoshiro Niiro
----------------------------------------
Name: Yoshiro Niiro
Title: General Manager
WACHOVIA BANK, N.A., as a Lender,
By: /s/ J. Timothy Toler
----------------------------------------
Name: J. Timothy Toler
Title: Senior Vice President
Dates Referenced Herein and Documents Incorporated by Reference
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