Exhibit 4.1
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$6,489,000,000
CREDIT AGREEMENT,
dated as of
July 1, 1994,
among
VIACOM INC.,
as Borrower,
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THE BANKS NAMED HEREIN,
as Banks,
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THE BANK OF NEW YORK,
CITIBANK, N.A.,
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
and
BANK OF AMERICA NT&SA,
as Managing Agents,
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THE BANK OF NEW YORK,
as the Documentation Agent,
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CITIBANK, N.A.,
as the Administrative Agent,
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JP MORGAN SECURITIES INC.,
as the Syndication Agent,
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THE BANKS IDENTIFIED AS AGENTS
ON THE SIGNATURE PAGES HEREOF,
as Agents,
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and
THE BANKS IDENTIFIED AS CO-AGENTS
ON THE SIGNATURE PAGES HEREOF,
as Co-Agents
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms . . . . . . . . . . . . . . . . . 1
1.2. Computation of Time Periods . . . . . . . . . . 22
1.3. Accounting Terms . . . . . . . . . . . . . . . . 22
ARTICLE II
AMOUNT AND TERMS OF THE SHORT-TERM LOANS
2.1. The Short-Term Loans . . . . . . . . . . . . . . 23
2.2. Making the Short-Term Loans . . . . . . . . . . 24
2.3. Termination/Reduction of the Short-Term Loan
Commitments . . . . . . . . . . . . . . . . . 25
2.4. Repayment of the Short-Term Loans . . . . . . . 27
2.5. Optional Prepayments of the Short-Term Loans . . 27
2.6. Mandatory Prepayment . . . . . . . . . . . . . . 27
2.7. Conversion to Term Loans . . . . . . . . . . . . 28
ARTICLE III
AMOUNT AND TERMS OF THE REVOLVING LOANS
3.1. The Revolving Loans . . . . . . . . . . . . . . 29
3.2. Making the Revolving Loans . . . . . . . . . . . 30
3.3. Termination/Reduction of the Revolving Loan
Commitments . . . . . . . . . . . . . . . . . 32
3.4. Repayment of the Revolving Loan . . . . . . . . 33
3.5. Optional Prepayments of the Revolving Loan . . . 33
3.6. Mandatory Prepayment . . . . . . . . . . . . . . 33
ARTICLE IV
THE TERM LOANS
4.1. The Term Loans . . . . . . . . . . . . . . . . . 33
4.2. Making the Term Loans . . . . . . . . . . . . . 34
4.3. Repayment of Term Loans . . . . . . . . . . . . 36
4.4. Optional Prepayments of the Term Loans . . . . . 36
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ARTICLE V
CONVERSION, INTEREST, PAYMENTS, FEES, ETC.
5.1. Conversion/Continuation Option . . . . . . . . . 37
5.2. Interest . . . . . . . . . . . . . . . . . . . . 38
5.3. Interest Rate Determination and Protection . . . 38
5.4. Fees . . . . . . . . . . . . . . . . . . . . . . 39
5.5. Increased Costs . . . . . . . . . . . . . . . . 40
5.6. Illegality . . . . . . . . . . . . . . . . . . . 42
5.7. Capital Adequacy . . . . . . . . . . . . . . . . 43
5.8. Payments and Computations . . . . . . . . . . . 44
5.9. Sharing of Payments, Etc. . . . . . . . . . . . 45
5.10. Replacement Banks . . . . . . . . . . . . . . . 46
ARTICLE VI
CONDITIONS OF LENDING
6.1. Conditions Precedent to the Making of the Initial
Loans . . . . . . . . . . . . . . . . . . . . 46
6.2. Additional Conditions Precedent to the Making of the
Initial Loans . . . . . . . . . . . . . . . . 47
6.3. Conditions Precedent to the Making of Each Loan 47
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Corporate Existence; Compliance with Law . . . . 48
7.2. Corporate Power; Authorization; Enforceable
Obligations . . . . . . . . . . . . . . . . . 48
7.3. Taxes . . . . . . . . . . . . . . . . . . . . . 49
7.4. Financial Information . . . . . . . . . . . . . 50
7.5. Litigation . . . . . . . . . . . . . . . . . . . 51
7.6. Margin Regulations . . . . . . . . . . . . . . . 51
7.7. ERISA . . . . . . . . . . . . . . . . . . . . . 51
7.8. No Defaults . . . . . . . . . . . . . . . . . . 52
7.9. Investment Company Act . . . . . . . . . . . . . 52
7.10. Insurance . . . . . . . . . . . . . . . . . . . 52
7.11. Environmental Protection . . . . . . . . . . . 52
7.12. Title and Liens . . . . . . . . . . . . . . . . 53
7.13. Trademarks, Copyrights, Etc. . . . . . . . . . 53
7.14. FCC Licenses, Franchises . . . . . . . . . . . 53
7.15. Disclosure . . . . . . . . . . . . . . . . . . 54
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ARTICLE VIII
FINANCIAL COVENANTS
8.1. Total Leverage Ratio . . . . . . . . . . . . . . 54
8.2. Ratio of EBIDT to Trailing Total Cash Interest and
Preferred Dividends . . . . . . . . . . . . . 55
8.3. Minimum Net Worth . . . . . . . . . . . . . . . 55
ARTICLE IX
AFFIRMATIVE COVENANTS
9.1. Compliance with Laws, Etc. . . . . . . . . . . . 55
9.2. Payment of Taxes, Etc. . . . . . . . . . . . . . 56
9.3. Maintenance of Insurance . . . . . . . . . . . . 56
9.4. Preservation of Corporate Existence, Etc. . . . 56
9.5. Books and Access . . . . . . . . . . . . . . . . 56
9.6. Maintenance of Properties, Etc. . . . . . . . . 57
9.7. Application of Proceeds . . . . . . . . . . . . 57
9.8. Financial Statements . . . . . . . . . . . . . . 57
9.9. Reporting Requirements . . . . . . . . . . . . . 59
ARTICLE X
NEGATIVE COVENANTS
10.1. Liens, Etc. . . . . . . . . . . . . . . . . . . 61
10.2. Mergers . . . . . . . . . . . . . . . . . . . . 62
10.3. Substantial Asset Sale . . . . . . . . . . . . 62
10.4. Transactions with Affiliates . . . . . . . . . 63
10.5. Margin Stock . . . . . . . . . . . . . . . . . 63
10.6. Subsidiary Indebtedness . . . . . . . . . . . . 63
10.7. Other Restrictions on Indebtedness . . . . . . 63
ARTICLE XI
EVENTS OF DEFAULT
11.1. Events of Default . . . . . . . . . . . . . . . 63
ARTICLE XII
THE MANAGING AGENTS AND THE FACILITY AGENTS
12.1. Authorization and Action . . . . . . . . . . . 66
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12.2. Managing Agents' and Facility Agents' Reliance,
Etc. . . . . . . . . . . . . . . . . . . . . 67
12.3. The Bank of New York, Citibank, N.A., Morgan
Guaranty Trust Company of New York, Bank of
America NT&SA and Their Affiliates . . . . . 68
12.4. Bank Credit Decision . . . . . . . . . . . . . 68
12.5. Determinations Under Sections 6.1, 6.2 and 6.3 69
12.6. Indemnification . . . . . . . . . . . . . . . . 69
12.7. Successor Facility Agents . . . . . . . . . . . 70
ARTICLE XIII
MISCELLANEOUS
13.1. Amendments, Etc. . . . . . . . . . . . . . . . 70
13.2. Notices, Etc. . . . . . . . . . . . . . . . . . 71
13.3. No Waiver; Remedies . . . . . . . . . . . . . . 71
13.4. Costs; Expenses; Indemnities . . . . . . . . . 72
13.5. Right of Set-Off . . . . . . . . . . . . . . . 73
13.6. Binding Effect . . . . . . . . . . . . . . . . 74
13.7. Assignments and Participations; Additional Banks
74
13.8. GOVERNING LAW; SEVERABILITY . . . . . . . . . . 77
13.9. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL
77
13.10. Confidentiality . . . . . . . . . . . . . . . 77
13.11. Section Titles . . . . . . . . . . . . . . . . 78
13.12. Execution in Counterparts . . . . . . . . . . 78
Schedules
Schedule I - Lending Offices
Schedule II - Commitments
Schedule 1.1 - Guarantees in Effect on the Date
of this Agreement
Schedule 2.3(b) - Publishing Assets
Schedule 10.1(a) - Satellite Transponder Liens
Schedule 10.1(b) - Liens
Exhibits
Exhibit A - Form of Notice of Borrowing
Exhibit B - Form of Paramount Parent Guarantee
Exhibit C - Form of VII Guarantee
Exhibit D - Form of Notice of Conversion or
Continuation
Exhibit E-1 - Form of Opinion of Shearman &
Sterling
Exhibit E-2 - Form of Opinion Philippe P. Dauman
Exhibit F - Form of Notice of Assignment and
Acceptance
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CREDIT AGREEMENT, dated as of July 1, 1994, among VIACOM INC., a
Delaware corporation (the "Borrower"), the Bank parties hereto from time to
time, THE BANK OF NEW YORK, as a Managing Agent and as the Documentation Agent,
CITIBANK, N.A., as a Managing Agent and as the Administrative Agent, MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, as a Managing Agent, JP MORGAN SECURITIES
INC., as the Syndication Agent, THE BANK OF AMERICA NT&SA, as a Managing Agent,
the Banks identified as Agents on the signature pages hereof, as Agents, and the
Banks identified as Co-Agents on the signature pages hereof, as Co-Agents.
W I T N E S S E T H:
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WHEREAS, the Borrower has requested that the Banks provide senior debt
financing for, among other things, the refinancing of certain existing
indebtedness of the Borrower and certain of its Subsidiaries, for payment of
related transaction costs, fees and expenses, to provide support for certain
commercial paper and competitive bid facilities of the Borrower and for general
corporate purposes and the Banks are willing to make funds available for such
purposes, but only upon the terms and subject to the conditions contained
herein; and
WHEREAS, simultaneously herewith, the Banks, the Facility Agents (as
hereinafter defined), the Managing Agents, the Agents and the Co-Agents are
entering into the Subsidiary Facility (as hereinafter defined), pursuant to
which the Banks will provide senior debt financing to certain subsidiaries of
the Borrower;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms. As used in this Agreement, the following terms
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have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Administrative Agent" means Citibank, N.A., in its capacity as the
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Administrative Agent, or any successor in such capacity.
"Affiliate" means, as to any Person, any Subsidiary of such Person and
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any other Person which, directly or indirectly, controls, is controlled by or is
under common control with such Person. For the purposes of this definition,
"control" means the possession of the power to direct or cause the direction of
management and policies of any Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agents" means each of the Banks identified as Agents on the signature
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pages hereof.
"Agreement" means this Credit Agreement, as modified, amended or
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supplemented from time to time.
"APB 16 and 17" means Accounting Principles Board Opinions Nos. 16 and
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17 as in effect at the time that any addition or adjustment required thereunder
is to be made to the financial statements of a Person.
"Applicable Eurodollar Rate Margin" shall mean on any date the
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percentage set forth below opposite the Credit Rating applicable to the Borrower
on such date:
CREDIT RATING MARGIN
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A-/A3 or better .375%
BBB+/Baa1 .500%
BBB/Baa2 .625%
BBB-/Baa3 .750%
BB+/Ba1 1.000%
BB/Ba2 1.250%
BB-/Ba3 or lower 1.500%
; provided, however, that if the ratings assigned by S&P and Moody's shall
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differ by one level, the Credit Rating shall be the rating which is the higher
level, or if they differ by more than one level, the Credit Rating shall be the
rating that is one rating level immediately above the lower of such ratings;
provided further, however, until the date after the Initial Funding Date on
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which the Borrower delivers a certificate (which may be the certificate
described in Section 9.8(e)) demonstrating that the Total Leverage Ratio (taking
into account its EBIDT through June 30, 1994 or the last day of the most
recently completed Fiscal Quarter for which financial statements have been
delivered to the Banks pursuant to Section 9.8 of this Agreement) is equal to or
less than 6.50x, the Applicable Eurodollar Rate Margin specified for each of the
rating levels listed above shall be increased by 0.1875%. Any
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change in the Credit Rating of the Borrower shall be effective to adjust the
Applicable Eurodollar Rate Margin as of the date such change is announced by the
applicable Rating Agency.
"Applicable Lending Office" means, with respect to each Bank, its
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Domestic Lending Office in the case of a Base Rate Loan, and its Eurodollar
Lending Office in the case of a Eurodollar Rate Loan.
"Arranger" means each of The Bank of New York, Citicorp Securities,
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Inc., JP Morgan Securities Inc. and BA Securities Inc.
"Banks" means the lenders listed on the signature pages hereof, and
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such other lenders as may become parties hereto from time to time pursuant to
Section 13.7.
"Base Rate" means, for any day, a fluctuating interest rate per annum
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as shall be in effect for such day, which rate per annum shall be equal at all
times to the higher of
(a) the rate of interest announced publicly by the Administrative
Agent in New York, New York as the Administrative Agent's base rate in
effect for such day; or
(b) the Federal Funds Rate for such day plus 1/2 of one percent per
annum;
provided, however, that if the higher of the Credit Ratings assigned by S&P and
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Moody's to the Borrower shall be BB-/Ba3 or lower, (or, if such Credit Ratings
differ by more than one level, the rating that is one rating level immediately
above the lower of such ratings, shall be BB-/Ba3 or lower) then the Base Rate
shall be equal at all times to the sum of (x) the higher of the foregoing rates
plus (y) 1/2 of one percent per annum.
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"Base Rate Loan" means any Loan or portion thereof that bears interest
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with reference to the Base Rate.
"Borrower" has the meaning specified in the recitals hereof.
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"Borrowing" means a Short-Term Loan Borrowing, a Revolving Loan
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Borrowing or a Term Loan Borrowing.
"Business Day" means a day of the year on which banks are not required
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or authorized to close in New York
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City and, if the applicable Business Day relates to a Eurodollar Rate Loan, a
day on which dealings are also carried on in Dollars in the London interbank
market.
"Capital Market Transaction" means the issuance or incurrence of any
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Indebtedness for borrowed money (other than borrowings hereunder) or the
issuance of any Equity or other securities, excluding Commercial Paper, in each
case whether by means of any public offering, private placement or incurrence of
additional bank debt.
"Capitalized Lease" means, as applied to any Person, any lease of
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property by such Person as lessee which should be capitalized on a balance sheet
of such Person prepared in accordance with GAAP, other than leases of satellite
transponders.
"Cash Equivalents" means (i) securities with maturities of one year or
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less from the date of acquisition issued or fully guaranteed or insured by the
United States government or any agency thereof, (ii) certificates of deposit,
time deposits, bankers' acceptances and repurchase agreements of any commercial
bank rated at least A-3 by Moody's, (iii) negotiable Eurodollar certificates of
deposit and time deposits issued by a London affiliate of a U.S. commercial bank
or Canadian bank qualified under the preceding clause (ii) if such affiliate's
long-term debt is rated A-3 or better by Moody's and (iv) commercial paper of an
issuer rated at least A-1+ by S&P or P-1 by Moody's, or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of investments.
"Co-Agents" means each of the Banks identified as Co-Agents on the
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signature pages hereof.
"Code" means the Internal Revenue Code of 1986 (or any successor
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legislation thereto), as amended from time to time.
"Commercial Paper" means any unsecured promissory note of the Borrower
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or Viacom International with a maturity at the time of issuance not exceeding
nine months, exclusive of days of grace, issued by the Borrower or Viacom
International pursuant to a commercial paper program of either.
"Commitment" means, as to any Bank, such Bank's aggregate Short-Term
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Loan Commitment, Revolving Loan Commitment and/or Term Loan Commitment and
"Commitments" means, as to all of the Banks, the aggregate of the Short-
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Term Loan Commitments, Revolving Loan Commitments and Term Loan Commitments of
all the Banks.
"Commitment Fee" has the meaning specified in Section 5.4(a).
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"Commitment Termination Date" means the earlier of (i) July 1, 2002
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and (ii) the date of the earlier termination in whole of all of the Commitments
pursuant to the terms hereof, including pursuant to Section 11.1.
"Contaminant" means any waste, pollutant, hazardous substance, toxic
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substance, hazardous waste, special waste, petroleum or petroleum derived
substance or waste, or any constituent of such substance or waste, including any
substance regulated under any Environmental Law.
"Credit Rating" means the most recent rating of the long-term senior
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unsecured debt of the Borrower announced by Moody's or S&P or, in the event that
either or both cease the issuance of debt ratings generally, such other rating
agency or rating agencies agreed to by the Majority Banks.
"Default" means any event which with the passing of time or the giving
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of notice or both would become an Event of Default.
"Documentation Agent" means The Bank of New York, in its capacity as
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the Documentation Agent, or any successor in such capacity.
"Dollars" and the sign "$" each mean the lawful money of the United
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States of America.
"Domestic Lending Office" means, with respect to any Bank, the office
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of such Bank specified as its "Domestic Lending Office" opposite its name on
Schedule I or such other office of such Bank as such Bank may from time to time
specify to the Borrower and the Administrative Agent.
"Earnings from Operations" means, at any time, for the Borrower and
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its Subsidiaries, revenues plus equity in earnings of affiliated companies, less
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(i) operating expenses, (ii) selling expenses, (iii) general and administrative
expenses and (iv) depreciation and amortization expenses.
"EBIDT" means, at any time, the Earnings from Operations of the
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Borrower and its Subsidiaries on a
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consolidated basis as set forth in the statement of operations of the Borrower
and its Subsidiaries for the immediately preceding four Fiscal Quarters for
which financial statements have been delivered to the Banks pursuant to Section
9.8 of this Agreement (adjusted to account for material dispositions during such
four Fiscal Quarters), plus (to the extent previously deducted) (a) the sum of
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the following expenses of the Borrower and its Subsidiaries for such period:
(i) depreciation expense; (ii) amortization expense (including all amortization
expenses recognized in accordance with APB 16 and 17 but excluding all other
amortization of programming, production and pre-publication costs); (iii)
expenses accrued under the Incentive Plans for such period; (iv) non-recurring
expenses and non-cash charges incurred in connection with the Tender Offer or
the Merger, (v) in the event that, during such period, the Borrower or any of
its Subsidiaries acquires all or substantially all of the assets or Equity of
any other Person or any Equity in any other Person that is reported on an equity
basis, the EBIDT of such Person, as determined in accordance with the terms of
this definition, shall be included in the EBIDT of the Borrower for all Fiscal
Quarters during such period; (vi) all other non-cash charges; and (vii) with
respect to the calculation of EBIDT through September 30, 1994, $48.35 million
of expenses associated with programming write-offs at USA Networks less (b) the
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proportional EBIDT of the interests held by any other Person in entities fully
consolidated with the Borrower and its Subsidiaries, as determined in accordance
with the terms of this definition. For the purposes of Section 8.2 only, EBIDT
shall be calculated on an actual historical basis without taking into account
acquisitions or dispositions during any relevant calculation period.
"Environmental Law" means the Comprehensive Environmental Response,
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Compensation, and Liability Act (42 U.S.C. Sec. 9601 et seq.), the Hazardous
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Material Transportation Act (49 U.S.C. Sec. 1801 et seq.), the Resource
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Conservation and Recovery Act (42 U.S.C. Sec. 6901 et seq.), the Federal Water
-- ---
Pollution Control Act (33 U.S.C. Sec. 1251 et seq.), the Clean Air Act (42
-- ---
U.S.C. Sec. 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. Sec.
-- ---
2601 et seq.), and the Occupational Safety and Health Act (29 U.S.C. Sec. 651
-- ---
et seq.), in each case as amended or supplemented from time to time, and any
- - -- ---
analogous future federal or present or future state or local statutes,
including, without limitation, transfer of ownership notification statutes such
as the New Jersey Environmental Cleanup Responsibility Act (N.J. Stat. Ann.
Sec. 13:1K-6 et seq.) and the Connecticut Industrial Transfer Law of 1985
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(Conn. Gen. Stat. Sec. 22a-134 et seq.) and the regulations promulgated
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pursuant thereto.
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"Environmental Liabilities and Costs" means, as to any Person, all
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liabilities, obligations, responsibilities, Remedial Actions, losses, damages,
punitive damages, consequential damages, treble damages, costs and expenses
(including, without limitation, all reasonable fees, disbursements and expenses
of counsel, expert and consulting fees, and costs of investigation and
feasibility studies), fines, penalties, sanctions and interest incurred as a
result of any claim or demand, by any Person, whether based in contract, tort,
implied or express warranty, strict liability, any criminal or civil statute,
including any Environmental Law, Permit, order or agreement with any
Governmental Authority or other Person, arising from environmental, health or
safety conditions, or the Release or threatened Release of a Contaminant into
the environment, resulting from the past, present or future operations of such
Person or its Subsidiaries.
"Environmental Lien" means any Lien in favor of any Governmental
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Authority for Environmental Liabilities and Costs.
"Equity" means all shares, options, equity interests, general or
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limited partnership interests, joint venture interests or participations or
other equivalents (regardless of how designated) of or in a corporation,
partnership or other entity, whether voting or non-voting, and including,
without limitation, common stock, preferred stock, purchase rights, warrants or
options for any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974 (or
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any successor legislation thereto) and the rules and regulations promulgated
thereunder, as amended from time to time.
"ERISA Affiliate" shall mean a corporation, partnership or other
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entity which is considered one employer with the Borrower under Section 4001 of
ERISA or Section 414 of the Code.
"ERISA Event" means (i) a Reportable Event with respect to a Title IV
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Plan; (ii) the withdrawal of the Borrower, any of its Subsidiaries or any ERISA
Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (iii) the filing of a notice of intent to terminate a Title IV Plan or
the treatment of a plan amendment as a termination under Section 4041 of ERISA;
or (iv) the institution of
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proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC.
"Eurocurrency Liabilities" has the meaning specified in Regulation D.
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"Eurodollar Lending Office" means, with respect to any Bank, the
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office of such Bank specified as its "Eurodollar Lending Office" opposite its
name on Schedule I (or, if no such office is specified, its Domestic Lending
Office) or such other office of such Bank as such Bank may from time to time
specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period, the rate of interest
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per annum determined by the Administrative Agent to be the offered rate per
annum at which deposits in Dollars appears on the Telerate Page 3750 (or any
successor page) as of 11:00 A.M. (London time), or in the event such offered
rate is not available from the Telerate Page, the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rates offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London interbank market at 11:00
A.M. (London time), two Business Days before the first day of such Interest
Period for deposit in dollars in an amount substantially equal to the aggregate
Eurodollar Rate Loans to which such Interest Period relates and for a period
equal to such Interest Period.
"Eurodollar Rate Loan" means any Loan or portion thereof that bears
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interest at a rate determined with reference to the Eurodollar Rate.
"Eurodollar Rate Reserve Percentage" means, for any Bank for any
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Interest Period, the reserve percentage applicable during such Interest Period
(or if more than one such percentage shall be so applicable, the daily average
of such percentages for those days in such Interest Period during which any such
percentage shall be so applicable) under Regulation D for determining the actual
reserve requirement incurred by such Bank (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities having
a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 11.1.
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"Existing Borrower Credit Agreement" means the Credit Agreement, dated
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as of November 19, 1993, as amended, by and among the Borrower, the banks named
therein, The Bank of New York, Citibank, N.A. and Morgan Guaranty Trust Company
of New York, as Managing Agents, Citibank, N.A., as the Administrator, the Banks
identified as Agents on the Signature Pages thereof, as Agents, and the Banks
identified as Co-Agents on the signature pages thereof, as Co-Agents.
"Existing Paramount Credit Agreements" means the Credit Agreements
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(i) by and between Paramount and Bank of America NT&SA, dated February 25, 1994,
as amended from time to time, and (ii) by and between Prentice-Hall Canada Inc.,
a wholly owned Subsidiary of Paramount, and Bank of America Canada, dated
March 10, 1994, as amended from time to time.
"Existing Viacom International Credit Agreement" means the Credit
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Agreement, dated as of September 26, 1989, as amended through the date hereof,
among Viacom International, the subsidiary obligors referred to therein, and the
banks, the agent and the co-agent parties thereto.
"Facility Agents" means each of the Administrative Agent, the
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Documentation Agent and the Syndication Agent.
"FCC" means the Federal Communications Commission, or any successor
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thereto.
"FCC License" means, with respect to the Borrower or any of its
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Subsidiaries, any radio, television or other license, Permit, certificate of
compliance or authorization issued by the FCC and required for the operation of
its respective radio and television broadcast stations and cable television
systems.
"Federal Funds Rate" means, for any day, a fluctuating interest rate
------------------
per annum equal for such day to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for such day on such transactions received by
the Administrative Agent from three federal funds brokers of recognized standing
selected by it.
"Final Judgment" has the meaning specified in Section 11.1(g).
--------------
-9-
"Fiscal Quarter" means any three month period ending March 31, June
--------------
30, September 30 or December 31 of any Fiscal Year, or such other fiscal quarter
end date as may be determined by the Borrower following the Merger.
"Fiscal Year" means each twelve-month period ending December 31, or
-----------
such other fiscal year end date as may be determined by the Borrower following
the Merger.
"Franchise" means a franchise, authorization or right by contract to
---------
construct, own, operate or otherwise exploit any cable television facility
operated by the Borrower or any of its Subsidiaries, granted by any Governmental
Authority.
"GAAP" means generally accepted accounting principles in the United
----
States of America as in effect from time to time and set forth in the rules,
regulations, opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entity as may be in general use by significant segments
of the accounting profession and which are applicable to the circumstances as of
the date of determination.
"GAAS" means generally accepted auditing standards in the United
----
States of America as in effect from time to time and set forth in the rules,
regulations, opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entity as may be in general use by significant segments
of the accounting profession and which are applicable to the circumstances as of
the date of determination.
"Governmental Authority" means any nation or government, any state or
----------------------
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantor Subsidiaries" means each of Viacom International and
----------------------
Paramount.
"Incentive Plans" means the Borrower's Long-Term Incentive Plan and
---------------
Long-Term Management Incentive Plan.
-10-
"Indebtedness" of any Person means at any date, without duplication,
------------
(i) all obligations of such Person for borrowed money (including, without
limitation, in the case of the Borrower, the obligations of the Borrower for
borrowed money under this Agreement), (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (iii) all
obligations of such Person to pay the deferred purchase price of Property or
services, except as provided below, (iv) all obligations of such Person as
lessee under Capitalized Leases, (v) all Indebtedness of others secured by a
Lien on any Property of such Person, whether or not such Indebtedness is assumed
by such Person, (vi) all Indebtedness of others directly or indirectly
guaranteed or otherwise assumed by such Person, including any obligations of
others endorsed (otherwise than for collection or deposit in the ordinary course
of business) or discounted or sold with recourse by such Person, or in respect
of which such Person is otherwise directly or indirectly liable, including,
without limitation any Indebtedness in effect guaranteed by such Person through
any agreement (contingent or otherwise) to purchase, repurchase or otherwise
acquire such obligation or any security therefor, or to provide funds for the
payment or discharge of such obligation, or to maintain the solvency or any
balance sheet or other financial condition of the obligor of such obligation,
provided that Indebtedness of the Borrower and its Subsidiaries shall not
- - --------
include (a) guarantees in existence on the date hereof of Indebtedness of
discontinued operations, and (b) guarantees of Indebtedness that are identified
on Schedule 1.1 to this Agreement and that arise from commitments in existence
at the date hereof (in each of cases (a) and (b), only if such guarantees are
not extended by the Borrower or any of its Subsidiaries after the date hereof
or, in the case of any increase in commitments, only the amount of the increase
in such existing commitments shall be included in Indebtedness) (vii) all
obligations of such Person as issuer, customer or account party under letters of
credit or bankers' acceptances that are either drawn or that back financial
obligations that would otherwise be Indebtedness; provided, however, that in
-------- -------
each of the foregoing clauses (i) through (vii), Indebtedness shall not include
obligations (other than under this Agreement or the Subsidiary Facility)
specifically with respect to the production, distribution and acquisition of
motion pictures or other programming rights, talent or publishing rights.
"Indemnified Liability" has the meaning specified in Section 13.4(b).
---------------------
-11-
"Indemnified Person" has the meaning specified in Section 13.4(b).
------------------
"Initial Funding Date" means the date on which the conditions set
--------------------
forth in Sections 6.1, 6.2 and 6.3 are satisfied or waived and the initial Loans
are made hereunder.
"Interest Period" means, (a) in the case of Base Rate Loans, the
---------------
period commencing on the date such Loans are made or on the date of conversion
of such Loans from Eurodollar Rate Loans and ending on the last day of each
Fiscal Quarter, and (b) in the case of Eurodollar Rate Loans, (i) initially, the
period commencing on the date such Loans are made or on the date of conversion
of such Loans or portions thereof from Base Rate Loans and ending one, two,
three or six months thereafter, as selected by the Borrower in its Notice of
Borrowing or Notice of Conversion or Continuation given to the Administrative
Agent pursuant to Section 2.2, 3.2, 4.2 or 5.1, as the case may be, and
(ii) thereafter, if such Loans are renewed, in whole or in part, as Eurodollar
Rate Loans pursuant to Section 5.1, the period commencing on the last day of the
immediately preceding Interest Period therefor and ending one, two, three or six
months thereafter, as selected by the Borrower in its Notice of Conversion or
Continuation given to the Administrative Agent pursuant to Section 5.1, subject,
however, to the following:
(i) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day, unless the result of such extension for any Eurodollar Rate
Loan would be to extend such Interest Period into another calendar month,
in which event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period in respect of Eurodollar Rate Loans that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of a calendar
month;
(iii) no Interest Period may extend beyond (A) the Commitment
Termination Date, in the case of the Revolving Loans and the Term Loans, or
(B) the Short-Term Loan Commitment Termination Date, in the case of the
Short-Term Loans;
-12-
(iv) the Borrower may not select any Interest Period in respect of
Loans in an aggregate amount less than $5,000,000; and
(v) there shall be outstanding at any one time no more than 20
Interest Periods in the aggregate.
"IRS" means the Internal Revenue Service, or any successor thereto.
---
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
----
assignment, deposit arrangement, encumbrance, lien (statutory or other),
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement.
"Loan Documents" means, collectively, this Agreement, the Subsidiary
--------------
Facility, the VII Guarantee, the Parent Guarantee, the Paramount Affiliate
Guarantee and the Paramount Parent Guarantee.
"Loan Parties" means each of the Borrower, each Subsidiary Borrower
------------
and each Guarantor Subsidiary.
"Loans" means, collectively, the Short-Term Loans, the Revolving Loans
-----
and the Term Loans.
"Majority Banks" means, at any time, Banks having at least 51% of the
--------------
aggregate amount of (x) the Commitments and (y) the Subsidiary Commitments under
(and as defined in) the Subsidiary Facility, taken together and voting as a
single group; provided, however, that, for purposes of this definition, if the
-------- -------
Commitment or Subsidiary Commitment of any Bank shall have been terminated, the
then aggregate unpaid principal amount of Loans of such Bank hereunder and
Subsidiary Loans of such Bank under (and as defined in) the Subsidiary Facility
shall be deemed to be such Bank's Commitment or Subsidiary Commitment, as the
case may be.
"Managing Agents" means each of The Bank of New York, Citibank, N.A.,
---------------
Morgan Guaranty Trust Company of New York and Bank of America NT&SA, acting in
such capacity.
"Margin Stock" has the meaning specified in Regulation U.
------------
"Material Adverse Change" means a change that has resulted or would
-----------------------
result in a Material Adverse Effect.
-13-
"Material Adverse Effect" means a material adverse effect on the
-----------------------
business, financial condition, operations or Properties of the Borrower and its
Subsidiaries taken as a whole.
"Material Credit Agreement Change" means a change that has materially
--------------------------------
adversely affected or would materially adversely affect the legality, validity
or enforceability of any payment obligation of the Borrower, Viacom
International or Paramount or, for the purpose of Section 9.9 of this Agreement
only, any of the MSubs under this Agreement or any other Loan Document.
"Material Subsidiary" of any Person means any "significant subsidiary"
-------------------
of such Person as defined in Regulation S-X, as amended from time to time,
promulgated under the Securities Act of 1933, as amended.
"Merger" means the merger of Viacom Sub Inc., a wholly owned
------
Subsidiary of the Borrower, with and into Paramount, with Paramount surviving as
a wholly owned Subsidiary of the Borrower.
"Merger Agreement" means the Amended and Restated Agreement and Plan
----------------
of Merger, dated as of February 4, 1994, between Paramount and the Borrower, as
amended by Amendment No. 1 thereto dated as of May 26, 1994.
"Merger Date" means the date on which the Merger is effective in
-----------
accordance with the Merger Agreement.
"Merger Debentures" means the Borrower's 8% Exchangeable Subordinated
-----------------
Debentures due 2006.
"Moody's" means Moody's Investors Service, Inc.
-------
"MSub Loan" means a "Subsidiary Loan" made to an MSub pursuant to the
---------
Subsidiary Facility.
"MSubs" shall mean each of Viacom Cablevision of Dayton, Inc., WNYT
-----
Inc., WMZQ Inc. and WVIT Inc., each a Delaware corporation and an indirect
wholly owned Subsidiary of the Borrower.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
------------------
4001(a)(3) of ERISA, to which the Borrower, any of its Subsidiaries or any ERISA
Affiliate is making, is obligated to make, has made or been obligated to make,
contributions on behalf of participants who are or were employed by any of them.
-14-
"NAI" means National Amusements, Inc., a Maryland corporation.
---
"Net Cash Proceeds" means:
-----------------
(a) in reference to asset sales, proceeds in cash as and when received
by the Borrower or any of its Subsidiaries (including cash paid in respect
of any Indebtedness received) from the sale by the Borrower or any of its
Subsidiaries to any Person (other than the Borrower or any of its wholly
owned Subsidiaries) of any asset outside of the ordinary course of business
(including, without limitation, the sale of any facility, division, plant
or other real property or interest in real property), net of the direct
costs relating to such sale, including, without limitation, (i) legal,
accounting and investment banking fees and sale commissions, (ii) taxes
paid or payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements in
each case arising directly from such sale), (iii) amounts required to be
applied to the repayment of Indebtedness relating to the asset that is the
subject of such sale and not otherwise provided for by the terms of such
sale, and (iv) reasonable reserves for purchase price adjustments; and
(b) in reference to Capital Market Transactions by any Person, the
proceeds in cash received from such Capital Market Transactions, net of all
issuance costs.
For purposes of this definition, proceeds received by any Subsidiary of the
Borrower other than a wholly owned Subsidiary shall be deemed to be Net Cash
Proceeds received by the Borrower only in an amount proportionate to the equity
ownership interest of the Borrower in the Subsidiary receiving such proceeds.
"Net Worth" means, at any time, as to the Borrower and its
---------
Subsidiaries on a consolidated basis (determined in accordance with GAAP), the
excess of total assets over (i) total liabilities as shown on the Borrower's
then most recent consolidated balance sheet and (ii) preferred stock that is
either exchangeable into debt or is non-perpetual.
"Notice of Assignment and Acceptance" has the meaning specified in
-----------------------------------
Section 13.7(a).
"Notice of Borrowing" means a notice of the Borrower substantially in
-------------------
the form of Exhibit A hereto specifying therein (i) the date of the proposed
Borrowing,
-15-
(ii) the aggregate amount of such proposed Borrowing, (iii) the amount thereof,
if any, requested to be Eurodollar Rate Loans, (iv) the initial Interest Period
or Interest Periods for any such Eurodollar Rate Loans and (v) whether such
Borrowing is to be a Short-Term Loan Borrowing, a Revolving Loan Borrowing or a
Term Loan Borrowing.
"Notice of Conversion or Continuation" has the meaning specified in
------------------------------------
Section 5.1.
"Paramount" means Paramount Communications Inc., a Delaware
---------
corporation.
"Paramount Affiliate Guarantee" means the guarantee by Paramount of
-----------------------------
the obligations of Viacom International and the MSubs pursuant to the Subsidiary
Facility, substantially in the form of Exhibit B to the Subsidiary Facility.
"Paramount Common Stock" means the common stock, par value $1.00 per
----------------------
share, of Paramount.
"Paramount Parent Guarantee" means the guarantee by Paramount of the
--------------------------
obligations of the Borrower pursuant to this Agreement, substantially in the
form of Exhibit B hereto.
"Parent Guarantee" means the guarantee by the Borrower of the
----------------
obligations of Viacom International and the MSubs pursuant to the Subsidiary
Facility, substantially in the form of Exhibit C to the Subsidiary Facility.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
----
successor thereto.
"Pension Plan" means an employee pension benefit plan, as defined in
------------
Section 3(2) of ERISA (other than a Multiemployer Plan), which is not an
individual account plan, as defined in Section 3(34) of ERISA, and which the
Borrower, any of its Subsidiaries or any ERISA Affiliate now or in the future
maintains, contributes to or has an obligation to contribute to on behalf of
participants who are or were employed by any of them.
"Permit" means any permit, approval, authorization, license, variance
------
or permission required from a Governmental Authority under an applicable
Requirement of Law.
"Person" means an individual, partnership, corporation (including a
------
business trust), joint stock
-16-
company, trust, unincorporated association, joint venture or other entity, or
Governmental Authority.
"Plan" shall mean an employee benefit plan as defined in Section 3(3)
----
of ERISA which is maintained or contributed to by the Borrower or an ERISA
Affiliate.
"Property" means any interest in any kind of property or asset,
--------
whether real, personal or mixed, and whether tangible or intangible, including,
without limitation, the right to use, transmit, display, license or otherwise
temporarily or permanently benefit from the possession of, control of or access
to any film, television program, trademark, trade name, copyright, service mark
or any other type of intellectual or intangible property.
"Qualified Plan" means an employee pension benefit plan, as defined in
--------------
Section 3(2) of ERISA, which is intended to be tax-qualified under Section
401(a) of the Code, and which the Borrower, any of its Subsidiaries or any ERISA
Affiliate now or in the future maintains, contributes to or has an obligation to
contribute to on behalf of participants who are or were employed by any of them.
"Ratable Portion" means, with respect to any Bank, (i) with respect to
---------------
the Short-Term Loans, the Revolving Loans and the Term Loans, respectively, the
percentage obtained by dividing the amount of such Bank's Short-Term Loan
Commitment, Revolving Loan Commitment or Term Loan Commitment, as the case may
be, by the aggregate amount of all of such Short-Term Loan Commitments,
Revolving Loan Commitments or Term Loan Commitments of all the Banks,
respectively, and (ii) with respect to the aggregate amount of all Commitments,
the percentage obtained by dividing the aggregate Commitment of such Bank by the
aggregate amount of all Commitments of all the Banks.
"Reference Banks" means The Bank of New York, Citibank, N.A., Morgan
---------------
Guaranty Trust Company of New York and the Bank of America NT&SA.
"Register" has the meaning specified in Section 13.7(g) hereof.
--------
"Regulation D" means Regulation D of the Board of Governors of the
------------
Federal Reserve System (or any successor thereto), as in effect from time to
time, or any successor thereto.
"Regulation T" means Regulation T of the Board of Governors of the
------------
Federal Reserve System (or any successor
-17-
thereto), as in effect from time to time, or any successor thereto.
"Regulation U" means Regulation U of the Board of Governors of the
------------
Federal Reserve System (or any successor thereto), as in effect from time to
time, or any successor thereto.
"Regulation X" means Regulation X of the Board of Governors of the
------------
Federal Reserve System (or any successor thereto), as in effect from time to
time, or any successor thereto.
"Release" means, as to any Person, any release, spill, emission,
-------
leaking, pumping, injection, deposit, disposal, discharge, disbursal, leaching
or migration into the indoor or outdoor environment or into or out of any
property owned by such Person, including the movement of Contaminants through or
in the air, soil, surface water, ground water or property.
"Remedial Action" means all actions required to (i) clean up, remove,
---------------
treat or in any other way address Contaminants in the indoor or outdoor
environment, (ii) prevent the Release or threat of Release or minimize the
further Release of Contaminants so they do not migrate or endanger or threaten
to endanger public health or welfare or the indoor or outdoor environment, or
(iii) perform pre-remedial studies and investigations and post-remedial
monitoring and care.
"Reportable Event" means any of the events described in Section
----------------
4043(b)(1), (2), (3), (5), (6), (8) or (9) of ERISA.
"Requirements of Law" means all federal, state and local laws, rules,
-------------------
regulations, orders, decrees or other determinations of an arbitrator, court or
other Governmental Authority, including the requirements of ERISA and
Environmental Law.
"Responsible Financial Officer" means the chief financial officer,
-----------------------------
treasurer, assistant treasurer, controller, secretary, assistant secretary or
other officer of the Borrower listed in the certificate delivered to the
Managing Agents pursuant to Section 6.1(c) or otherwise notified to the
Administrative Agent as being authorized to execute documents and certificates
and otherwise act on behalf of the Borrower in connection with financial matters
arising under this Agreement or any other Loan Document.
-18-
"Responsible Officer" of any Person means any of the officers of such
-------------------
Person listed in the certificate delivered to the Managing Agents pursuant to
Section 6.1(c) or otherwise notified to the Administrative Agent as being
authorized to execute and deliver documents and certificates and otherwise act
on behalf of such Person in all matters (other than financial matters) arising
under this Agreement or any other Loan Document.
"Revolving Loan" means a Loan made to the Borrower pursuant to
--------------
Section 3.1.
"Revolving Loan Borrowing" means a borrowing by the Borrower
------------------------
consisting of Revolving Loans made on the same day by the Banks ratably
according to their respective Revolving Loan Commitments.
"Revolving Loan Commitment" has the meaning specified in Section
-------------------------
3.1(a).
"S&P" means Standard & Poor's Ratings Group.
---
"Scheduled Revolving Loan Commitment Reduction Date" has the meaning
--------------------------------------------------
specified in Section 3.3(b).
"Short-Term Loan" means a Loan made to the Borrower pursuant to
---------------
Section 2.1.
"Short-Term Loan Borrowing" means a borrowing by the Borrower
-------------------------
consisting of Short-Term Loans made on the same day by the Banks ratably
according to their respective Short-Term Loan Commitments.
"Short-Term Loan Commitment" has the meaning specified in Section
--------------------------
2.1(a).
"Short-Term Loan Commitment Termination Date" means the earlier of
-------------------------------------------
(i) December 31, 1996 and (ii) the date of the earlier termination in full of
the Short-Term Loan Commitment pursuant to the terms hereof, including pursuant
to Section 11.1.
"Single-Employer Plan" shall mean a single-employer plan as defined in
--------------------
section 4001(a)(15) of ERISA which is subject to the provisions of Title IV of
ERISA.
"Subsidiary" means, with respect to any Person, any corporation,
----------
partnership or other business entity of which more than 50% of the outstanding
Equity having ordinary voting power to elect a majority of the board of
directors of such entity (irrespective of whether, at the
-19-
time, Equity of any other class or classes of such entity shall have or might
have voting power by reason of the happening of any contingency) is, or of which
more than 50% of the interests in which are, at the time, directly or
indirectly, owned by such Person and/or one or more Subsidiaries of such Person.
"Subsidiary Borrowers" means the MSubs and Viacom International, as
--------------------
borrowers under the Subsidiary Facility.
"Subsidiary Facility" means the Credit Agreement, dated as of the date
-------------------
hereof, among Viacom International, the MSubs, the banks parties thereto, The
Bank of New York, Citibank, N.A., Morgan Guaranty Trust Company of New York and
Bank of America NT&SA, as Managing Agents, The Bank of New York, as
Documentation Agent, Citibank, N.A., as the Administrative Agent, JP Morgan
Securities Inc. as the Syndication Agent, the banks identified as Agents on the
signature pages thereof, as Agents, and the banks identified as Co-agents on the
signature pages thereof, as Co-Agents.
"Syndication Agent" means JP Morgan Securities Inc. in its capacity as
-----------------
the Syndication Agent, or any successor in such capacity.
"Tax Affiliate" means, as to any Person, (i) any Subsidiary of such
-------------
Person, or (ii) any Affiliate of such Person with which such Person files or is
required to file consolidated, combined or unitary tax returns.
"Tax Sharing Agreement" means the Income Tax Agreement, dated as of
---------------------
August 15, 1987, as amended, among NAI, the Borrower and Viacom International.
"Tender Offer" means the acquisition by the Borrower on March 11, 1994
------------
of approximately 50.2% of the issued and outstanding shares of Paramount Common
Stock pursuant to the Borrower's Offer to Purchase dated October 25, 1993 as
amended.
"Term Loan" means a Loan made to the Borrower pursuant to Section 4.1.
---------
"Term Loan Borrowing" means a borrowing by the Borrower consisting of
-------------------
Term Loans made on the same day by the Banks ratably according to their
respective Term Loan Commitments.
"Term Loan Commitment" has the meaning specified in Section 4.1(a).
--------------------
-20-
"Title IV Plan" means a Pension Plan, other than a Multiemployer Plan,
-------------
which is covered by Title IV of ERISA.
"Total Cash Interest and Preferred Dividends" means, for any period,
-------------------------------------------
the sum of the following amounts: (i) the cash interest expense incurred by the
Borrower and its Subsidiaries during the preceding four Fiscal Quarters with
respect to the aggregate amount of all Indebtedness outstanding during such
period plus (ii) the cash dividends paid by the Borrower and its Subsidiaries to
----
Persons other than the Borrower and its wholly owned Subsidiaries during such
four Fiscal Quarters with respect to preferred stock.
"Total Debt" of the Borrower and its Subsidiaries means, on any date,
----------
the total outstanding Indebtedness of the Borrower and its Subsidiaries on a
consolidated basis; provided that for purposes of calculating the Total Leverage
--------
Ratio, Total Debt shall be reduced by: (i) 85% of cash, Cash Equivalents and
short-term investments held by the Borrower and its Subsidiaries on a
consolidated basis from the date hereof to and including June 30, 1995, (ii) 75%
of such amounts on any date thereafter to and including June 30, 1996, and (iii)
65% of such amounts on any date thereafter; and provided further that Total
--- -------- -------
Debt, as of any date prior to January 1, 1995, shall not include the outstanding
principal amount of the Merger Debentures.
"Total Leverage Ratio" means the consolidated ratio of Total Debt to
--------------------
EBIDT as to the Borrower and Paramount on a pro forma consolidated basis prior
to the Merger and as to the Borrower thereafter.
"Viacom International" means Viacom International Inc., a Delaware
--------------------
corporation and a wholly owned subsidiary of the Borrower.
"VII Guarantee" means the guarantee by Viacom International of the
-------------
obligations of the Borrower pursuant to this Agreement, substantially in the
form of Exhibit C hereto.
"Withdrawal Liability" means, as to any Person, at any time, the
--------------------
aggregate amount of the liabilities, if any, of such Person pursuant to Section
4201 of ERISA.
1.2. Computation of Time Periods. In this Agreement, in the
---------------------------
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding" and the word "through" means "to and including".
-21-
1.3. Accounting Terms. All accounting terms not specifically defined
----------------
herein shall be construed in accordance with GAAP.
The parties hereto agree, however, that in the event that any change
in accounting principles from those used in the preparation of the financial
statements referred to in Section 7.4(a) is hereafter occasioned by the
promulgation of rules, regulations, pronouncements, opinions and statements by
or required by the Financial Accounting Standards Board or Accounting Principles
Board or the American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) and such change materially affects
the calculation of any component of any financial covenant, standard or term
contained in this Agreement, the Managing Agents and the Borrower shall
negotiate in good faith to amend such financial covenants, standards or terms
found in this Agreement (other than in respect of financial statements to be
delivered hereunder) so that, upon adoption of such changes, the criteria for
evaluation of the Borrower's and its Subsidiaries' financial condition shall be
the same after such change as if such change had not been made; provided,
--------
however, that (i) any such amendments shall not become effective for purposes of
- - -------
this Agreement unless approved by the Majority Banks and (ii) if the Borrower
and the Majority Banks cannot agree on such an amendment, then the calculations
under such financial covenants, standards or terms shall continue to be computed
without giving effect to such change in accounting principles.
ARTICLE II
AMOUNT AND TERMS OF THE SHORT-TERM LOANS
2.1. The Short-Term Loans. (a) The Short-Term Loans. On the terms
-------------------- --------------------
and subject to the conditions contained in this Agreement, each Bank severally
agrees to make Short-Term Loans to the Borrower from time to time on any
Business Day during the period from the Initial Funding Date until the Short-
Term Loan Commitment Termination Date in an aggregate amount not to exceed at
any time outstanding the amount set forth opposite such Bank's name on Schedule
II as its " Short-Term Loan Commitment", (as adjusted from time to time by
reason of assignments in accordance with the provisions of Section 13.7 and as
such amount may be reduced pursuant to Section 2.3, such Bank's "Short-Term Loan
Commitment"), provided, however, that, following the making of each such
-------- -------
proposed Short-Term Loan, the aggregate principal amount of all Revolving Loans
and Short-Term Loans
-22-
outstanding, together with the aggregate face amount of Commercial Paper
outstanding, shall not exceed the aggregate amount of the Revolving Loan
Commitment of the Banks and the Short-Term Loan Commitment at such time. Within
the limits of each Bank's Short-Term Loan Commitment, amounts borrowed under
this Section 2.1(a) and prepaid pursuant to Section 2.5 may be reborrowed under
this Section 2.1(a).
(b) Evidence of Debt. (i) Each Bank shall maintain in accordance
----------------
with its usual practice an account or accounts evidencing the Indebtedness to
such Bank resulting from each Short-Term Loan made by such Bank to the Borrower
from time to time, including the amounts of principal and interest payable and
paid to such Bank from time to time hereunder.
(ii) The Register maintained by the Administrative Agent pursuant to
Section 13.7(g) shall include a "Short-Term Loan contract control account" for
each Bank, in which account shall be recorded (A) the date and amount of each
Short-Term Loan Borrowing hereunder, (B) the amount and type of each Bank's
Short-Term Loan comprising such Borrowing and any Interest Period applicable
thereto, (C) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Bank with respect to each such
Short-Term Loan hereunder and (D) the amount of any sum received by the
Administrative Agent from the Borrower with respect to such Short-Term Loans
hereunder and each Bank's Ratable Portion thereof.
(iii) The entries made in the Register in respect of Short-Term Loans
shall be conclusive and binding for all purposes, absent manifest error.
2.2. Making the Short-Term Loans. (a) Each Short-Term Loan
---------------------------
Borrowing shall be made upon receipt of a Notice of Borrowing, given by the
Borrower to the Administrative Agent not later than (i) 9:30 A.M. (New York City
time) on the Business Day of the proposed Short-Term Loan Borrowing, in the
event such Short-Term Loan Borrowing is to be comprised of Base Rate Loans, and
(ii) 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Short-Term Loan Borrowing, in the event such Short-Term Loan
Borrowing is to be comprised of Eurodollar Rate Loans.
(b) The Administrative Agent shall give to each Bank prompt notice
(but in any event on the same day) of its receipt of a Notice of Borrowing in
respect of Short-Term Loans and, if Eurodollar Rate Loans are properly requested
-23-
in such Notice of Borrowing, upon its determination thereof, notice of the
applicable interest rate under Section 5.3(b). Each Bank shall, before 11:00
A.M. (or in the case of a Short-Term Loan Borrowing being made on the same day,
before 12:00 noon) (New York City time) on the date of the proposed Short-Term
Loan Borrowing, make available for the account of its Applicable Lending Office
to the Administrative Agent at its address referred to in Section 13.2, in
immediately available funds, such Bank's Ratable Portion of such proposed Short-
Term Loan Borrowing. After the Administrative Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article VI, the
Administrative Agent will make such funds available to the Borrower at the
Administrative Agent's aforesaid address.
(c) Each Short-Term Loan Borrowing pursuant to this Section 2.2 shall
be in an aggregate amount of not less than $5,000,000 or an integral multiple of
$5,000,000 in excess thereof.
(d) Each Notice of Borrowing pursuant to this Section 2.2 shall be
irrevocable and binding on the Borrower. In the case of any proposed Short-Term
Loan Borrowing comprised of Eurodollar Rate Loans, the Borrower shall indemnify
each Bank against any loss, cost or expense incurred by such Bank as a result of
any failure to fulfill on or before the date specified in such Notice of
Borrowing for such proposed Borrowing the applicable conditions set forth in
Article VI, including, without limitation, any loss (excluding loss of the
margin payable in accordance with Section 5.2 on the amount of principal not
borrowed as a result of such failure), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Bank to
fund any Eurodollar Rate Loan to be made by such Bank as part of such proposed
Short-Term Loan Borrowing when such Eurodollar Rate Loan, as a result of such
failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from a
Bank prior to the date of any proposed Short-Term Loan Borrowing pursuant to
this Section 2.2 that such Bank will not make available to the Administrative
Agent such Bank's Ratable Portion of such Short-Term Loan Borrowing, the
Administrative Agent may assume that such Bank has made such Ratable Portion
available to the Administrative Agent on the date of such Short-Term Loan
Borrowing in accordance with this Section 2.2 and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank
-24-
shall not have so made such Ratable Portion available to the Administrative
Agent and the Administrative Agent has so made available such amount, such Bank
and the Borrower severally agree to repay to the Administrative Agent forthwith
on demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to the Short-Term Loans
comprising such Short-Term Loan Borrowing and (ii) in the case of such Bank, the
Federal Funds Rate. If such Bank shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Bank's Short-
Term Loan as part of such Borrowing for purposes of this Agreement. If the
Borrower shall repay to the Administrative Agent such corresponding amount, such
payment shall not relieve such Bank of any obligation it may have to the
Borrower hereunder.
(f) The failure of any Bank to make the Short-Term Loan to be made by
it as part of any Short-Term Loan Borrowing pursuant to this Section 2.2 shall
not relieve any other Bank of its obligation, if any, hereunder to make its
Short-Term Loan on the date of such Borrowing, but no Bank shall be responsible
for the failure of any other Bank to make the Short-Term Loan to be made by such
other Bank on the date of any such Short-Term Loan Borrowing.
2.3. Termination/Reduction of the Short-Term Loan Commitments. (a)
--------------------------------------------------------
Optional Reductions. The Borrower shall have the right, upon at least one
- - -------------------
Business Day's prior notice to the Administrative Agent, to terminate in whole
or permanently reduce ratably in part the unused portions of the respective
Short-Term Loan Commitments of the Banks; provided, however, that each partial
-------- -------
reduction shall be in the aggregate amount of not less than $5,000,000 or an
integral multiple of $5,000,000 in excess thereof.
(b) Mandatory Reductions. If the Borrower or any Subsidiary shall
--------------------
(i) sell any assets (other than in the ordinary course of business) or
(ii) effect a Capital Market Transaction, then (a) the Short-Term Loan
Commitment of each Bank shall be automatically reduced by an amount equal to
such Bank's Ratable Portion of the Net Cash Proceeds of such sale or Capital
Market Transaction, up to an aggregate of $2.5 billion for all Banks; provided,
--------
however, that:
- - -------
(x) no such reduction of any Short-Term Loan Commitment shall be
required for a period of 12 months from the related sale date in respect of
Net Cash
-25-
Proceeds from the sale of those publishing assets identified on
Schedule 2.3(b) hereto; and
(y) no such reduction of any Short-Term Loan Commitment shall be
required for a period of 12 months from the related sale date in respect of
other Net Cash Proceeds in an aggregate amount of (A) up to $100 million,
plus (B) after the aggregate Short-Term Loan Commitments have been reduced
----
to $1.5 billion, up to an additional $150 million in the aggregate of Net
Cash Proceeds plus (C) after the aggregate Short-Term Loan Commitments have
----
been reduced to $1.5 billion, up to an additional $250 million of Net Cash
Proceeds received in excess of amounts previously or subsequently applied
under (A) and (B) if at the time of receipt thereof the Total Leverage
Ratio is equal to or less than 6.50x.
In the event that Net Cash Proceeds are not reinvested (or a purchase agreement
has not been executed) in the 12-month period provided above, the Short-Term
Loan Commitment of each Bank shall be reduced by such Bank's Ratable Portion of
any Net Cash Proceeds referred to in clause (x) or (y) above (i) in respect of
which no such reduction shall previously have occurred and (ii) which have not
been reinvested (and no purchase agreement in respect of such reinvestment has
been executed) on or prior to such date, provided, however, for purposes of this
-------- -------
Section 2.3(b), reinvestment of Net Cash Proceeds within the 12 month period
provided above shall be deemed to include assets purchased after the date hereof
but within six months prior to the transactions which produced such Net Cash
Proceeds. After the Short-Term Loan Commitments have been reduced to $0 and all
Short-Term Loans have been repaid, no mandatory reductions of any Commitment
shall be required from such Net Cash Proceeds.
(c) Payment of Commitment Fee. Simultaneously with any termination
-------------------------
or reduction of the Short-Term Loan Commitments pursuant to this Section 2.3,
the Borrower shall pay to the Administrative Agent for the account of each Bank
the applicable Commitment Fee, if any, on the amount of the Short-Term Loan
Commitments so terminated or reduced and owed to such Bank through the date of
such termination or reduction.
2.4. Repayment of the Short-Term Loans. The Borrower shall repay the
---------------------------------
outstanding principal amount of the Short-Term Loans in full on the Short-Term
Loan Commitment Termination Date.
2.5. Optional Prepayments of the Short-Term Loans. The Borrower may,
--------------------------------------------
upon at least three Business Days'
-26-
prior notice (or at least one Business Day's prior notice in the case of Base
Rate Loans) to the Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding principal amount of the Short-Term Loans, in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however, that the Borrower
-------- -------
shall indemnify the Banks pursuant to Section 13.4(c) in the event that any
prepayment of any Eurodollar Rate Loans shall be made on a day other than the
last day of an Interest Period for such Loans; and provided further, however,
-------- ------- -------
that each partial prepayment permitted under this Section 2.5 shall be in an
aggregate amount of not less than $5,000,000 or integral multiples of $1,000,000
in excess thereof.
2.6. Mandatory Prepayment. The Borrower shall prepay Short-Term
--------------------
Loans to the extent necessary to ensure that (i) the aggregate amount of all
Short-Term Loans outstanding will not at any time exceed the Short-Term Loan
Commitments of the Banks, and (ii) the aggregate amount of all Revolving Loans
and Short-Term Loans outstanding, together with the aggregate face amount of
Commercial Paper outstanding, will not at any time exceed the aggregate amount
of the Short-Term Loan Commitments and Revolving Loan Commitments of the Banks.
Any prepayments required to assure that the aggregate unused amount of the
Short-Term Loan Commitments and the Revolving Loan Commitments is not less than
the face amount of outstanding Commercial Paper shall be applied first to the
Revolving Loans and then to the Short-Term Loans.
2.7. Conversion to Term Loans. On any date prior to the Short-Term
------------------------
Loan Commitment Termination Date that the Borrower prepays in full any
Subsidiary Loans (as defined in the Subsidiary Facility) to an MSub under the
Subsidiary Facility, the Borrower may elect, by not less than three Business
Days' prior written notice to the Administrative Agent, to convert an
outstanding portion of the Short-Term Loans to additional Term Loans in an
amount equal to the principal amount of such Subsidiary Loans (as defined in the
Subsidiary Facility) being prepaid. Such conversion shall be made ratably among
the respective outstanding Short-Term Loans of the Banks and shall be effective
simultaneously with the prepayment of the relevant MSub Loans. The Term Loans
resulting from such conversion shall for all purposes be treated as outstanding
Term Loans hereunder, provided, however, that the principal amount of such
-------- -------
resulting Term Loans shall be payable in quarterly installments on January 1,
April 1, July 1 and October 1 of each year, commencing
-27-
July 1, 1997, and ending on July 1, 2002, in an amount established by applying
the Quarterly Percentage Reduction specified under column (y) below for the
relevant dates during the periods specified under column (x) below to the
outstanding amount of such Term Loans on January 1, 1997:
(x) (y)
Quarterly
Percentage
Quarter Reduction
July 1, 1997 through 3%
October 1, 1997
January 1, 1998 through 4%
October 1, 1999
January 1, 2000 through 5%
October 1, 2000
January 1, 2001 through 6%
July 1, 2002
Such amounts shall be payable in addition to all amounts otherwise due and
payable in respect of Term Loans under Section 4.3(a). The Short-Term Loan
Commitments of the Banks shall be automatically reduced by the amount of the
Short-Term Loans converted under this Section 2.7 on the date they are so
converted.
ARTICLE III
AMOUNT AND TERMS OF THE REVOLVING LOANS
3.1. The Revolving Loans. (a) The Revolving Loans. On the terms
------------------- -------------------
and subject to the conditions contained in this Agreement, each Bank severally
agrees to make Revolving Loans to the Borrower from time to time on any Business
Day during the period from the Initial Funding Date until the Commitment
Termination Date in an aggregate amount not to exceed at any time outstanding
the amount set forth opposite such Bank's name on Schedule II as its "Revolving
Loan Commitment" (as adjusted from time to time by reason of assignments in
accordance with the provisions of Section 13.7 and as such amount may be reduced
pursuant to Section 3.3 such Bank's "Revolving Loan Commitment"); provided,
--------
however, that, following the making of each such proposed Revolving Loan, the
- - -------
aggregate amount of all
-28-
Revolving Loans and Short-Term Loans outstanding, together with the aggregate
face amount of Commercial Paper outstanding, shall not exceed the aggregate
amount of the Revolving Loan Commitment of the Banks and the Short-Term Loan
Commitment at such time. Within the limits of each Bank's Revolving Loan
Commitment, amounts borrowed under this Section 3.1(a) and prepaid pursuant to
Section 3.5 may be reborrowed under this Section 3.1(a).
(b) Evidence of Debt. (i) Each Bank shall maintain in accordance
----------------
with its usual practice an account or accounts evidencing the Indebtedness to
such Bank resulting from each Revolving Loan made by such Bank to the Borrower
from time to time, including the amounts of principal and interest payable and
paid to such Bank from time to time hereunder.
(ii) The Register maintained by the Administrative Agent pursuant to
Section 13.7(g) shall include a "Revolving Loan contract control account" for
each Bank, in which account shall be recorded (A) the date and amount of each
Revolving Loan Borrowing hereunder, (B) the amount and type of each Bank's
Revolving Loan comprising such Borrowing and any Interest Period applicable
thereto, (C) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Bank with respect to each such
Revolving Loan hereunder and (D) the amount of any sum received by the
Administrative Agent from the Borrower with respect to such Revolving Loans
hereunder and each Bank's Ratable Portion thereof.
(iii) The entries made in the Register in respect of the Revolving
Loans shall be conclusive and binding for all purposes, absent manifest error.
3.2. Making the Revolving Loans. (a) Each Revolving Loan Borrowing
--------------------------
shall be made upon receipt of a Notice of Borrowing, given by the Borrower to
the Administrative Agent not later than (i) 9:30 A.M. (New York City time) on
the Business Day of the proposed Revolving Loan Borrowing, in the event such
Revolving Loan Borrowing is to be comprised of Base Rate Loans, and (ii) 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Revolving Loan Borrowing, in the event such Revolving Loan Borrowing is
to be comprised of Eurodollar Rate Loans.
(b) The Administrative Agent shall give to each Bank prompt notice
(but in any event on the same day) of its receipt of a Notice of Borrowing in
respect of Revolving Loans and, if Eurodollar Rate Loans are properly requested
-29-
in such Notice of Borrowing, upon its determination thereof, notice of the
applicable interest rate under Section 5.3(b). Each Bank shall, before
11:00 A.M. (or in the case of a Revolving Loan Borrowing being made on the same
day, before 12:00 noon) (New York City time) on the date of the proposed
Revolving Loan Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at its address referred to in Section
13.2, in immediately available funds, such Bank's Ratable Portion of such
proposed Revolving Loan Borrowing. After the Administrative Agent's receipt of
such funds and upon fulfillment of the applicable conditions set forth in
Article VI, the Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's aforesaid address.
(c) Each Revolving Loan Borrowing pursuant to this Section 3.2 shall
be in an aggregate amount of not less than $5,000,000 or an integral multiple of
$5,000,000 in excess thereof.
(d) Each Notice of Borrowing pursuant to this Section 3.2 shall be
irrevocable and binding on the Borrower. In the case of any proposed Revolving
Loan Borrowing comprised of Eurodollar Rate Loans, the Borrower shall indemnify
each Bank against any loss, cost or expense incurred by such Bank as a result of
any failure to fulfill on or before the date specified in such Notice of
Borrowing for such proposed Borrowing the applicable conditions set forth in
Article VI, including, without limitation, any loss (excluding loss of the
margin payable in accordance with Section 5.2 on the amount of principal not
borrowed as a result of such failure), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Bank to
fund any Eurodollar Rate Loan to be made by such Bank as part of such proposed
Revolving Loan Borrowing when such Eurodollar Rate Loan, as a result of such
failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from a
Bank prior to the date of any proposed Revolving Loan Borrowing pursuant to this
Section 3.2 that such Bank will not make available to the Administrative Agent
such Bank's Ratable Portion of such Revolving Loan Borrowing, the Administrative
Agent may assume that such Bank has made such Ratable Portion available to the
Administrative Agent on the date of such Revolving Loan Borrowing in accordance
with this Section 3.2 and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Bank shall not have so made such Ratable Portion
available to the
-30-
Administrative Agent and the Administrative Agent has so made available such
amount, such Bank and the Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Administrative Agent,
at (i) in the case of the Borrower, the interest rate applicable at the time to
the Revolving Loan comprising such Revolving Loan Borrowing and (ii) in the case
of such Bank, the Federal Funds Rate. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Revolving Loan as part of such Borrowing for purposes of
this Agreement. If the Borrower shall repay to the Administrative Agent such
corresponding amount, such payment shall not relieve such Bank of any obligation
it may have to the Borrower hereunder.
(f) The failure of any Bank to make the Revolving Loan to be made by
it as part of any Revolving Loan Borrowing pursuant to this Section 3.2 shall
not relieve any other Bank of its obligation, if any, hereunder to make its
Revolving Loan on the date of such Borrowing, but no Bank shall be responsible
for the failure of any other Bank to make the Revolving Loan to be made by such
other Bank on the date of any such Revolving Loan Borrowing.
3.3. Termination/Reduction of the Revolving Loan Commitments. (a)
-------------------------------------------------------
Scheduled Reductions. The Revolving Loan Commitment of each Bank shall be
- - --------------------
automatically reduced on each date specified in column (x) below (each such
date, a "Scheduled Revolving Loan Commitment Reduction Date") by an amount equal
to such Bank's Ratable Portion of the amount specified in column (y) below
opposite such date:
(x) (y)
Scheduled Revolving Amounts of
Loan Commitment Reduction of
Reduction Date Loan Commitments
------------------ ----------------
July 1, 1995 $0
July 1, 1996 $0
July 1, 1997 $0
July 1, 1998 $ 90,000,000
July 1, 1999 $360,000,000
July 1, 2000 $360,000,000
July 1, 2001 $450,000,000
July 1, 2002 $540,000,000
The amounts under (y) shall be adjusted in the amounts and in the
manner required under Section 3.3(b).
-31-
(b) Optional Reductions. The Borrower shall have the right, upon at
-------------------
least three Business Days' prior notice to the Administrative Agent, to
terminate in whole or permanently reduce ratably in part the unused portions of
the respective Revolving Loan Commitments of the Banks; provided, however, that
-------- -------
each partial reduction shall be in the aggregate amount of not less than
$5,000,000 or an integral multiple of $5,000,000 in excess thereof; and provided
--- --------
further, however, that if any such optional reduction of the Revolving Loan
- - ------- -------
Commitment that is made at the Borrower's option as a result of the receipt by
the Borrower of Net Cash Proceeds of asset sales or Capital Market Transactions
shall be made (a) 50% in order of scheduled commitment reductions, and (b) 50%
pro rata among all remaining scheduled commitment reductions applicable to the
Revolving Loan Commitment; except as provided in the second proviso above,
optional reductions may be allocated against Scheduled Revolving Loan Commitment
Reduction Dates in any manner requested by the Borrower.
(c) Payment of Commitment Fee. Simultaneously with any termination
-------------------------
or reduction of the Revolving Loan Commitments pursuant to this Section 3.3, the
Borrower shall pay to the Administrative Agent for the account of each Bank the
applicable Commitment Fee, if any, on the amount of the Revolving Loan
Commitments so terminated or reduced and owed to such Bank through the date of
such termination or reduction.
3.4. Repayment of the Revolving Loan. The Borrower shall repay the
-------------------------------
outstanding principal amount of the Revolving Loan (together with all accrued
but unpaid interest thereon) in full on the Commitment Termination Date.
3.5. Optional Prepayments of the Revolving Loan. The Borrower may,
------------------------------------------
upon at least three Business Days' prior notice (or at least one Business Day's
prior notice in the case of Base Rate Loans), to the Administrative Agent
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given the Borrower shall, prepay the outstanding principal
amount of the Revolving Loan comprising a part of the same Revolving Loan
Borrowing, in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that
-------- -------
the Borrower shall indemnify the Banks pursuant to Section 13.4(c) in the event
that any prepayment of any Eurodollar Rate Loans shall be made on a day other
than the last day of an Interest Period for such Loans; and provided further,
-------- -------
however, that each partial prepayment permitted under this
- - -------
-32-
Section 3.5 shall be in an aggregate amount not less than $5,000,000 or integral
multiples of $1,000,000 in excess thereof.
3.6. Mandatory Prepayment. The Borrower shall prepay Revolving Loans
--------------------
to the extent necessary to ensure that (i) the aggregate amount of all Revolving
Loans outstanding will not at any time exceed the Revolving Loan Commitments of
the Banks and (ii) the aggregate amount of all Revolving Loans and Short-Term
Loans outstanding, together with the aggregate face amount of Commercial Paper
outstanding, will not at any time exceed the aggregate amount of the Revolving
Loan Commitments and the Short-Term Loan Commitments of the Banks. Any
prepayments required to assure that the aggregate unused amount of the Short-
Term Loan Commitments and the Revolving Loan Commitments is not less than the
face amount of outstanding Commercial Paper shall be applied first to the
Revolving Loans and then to the Short-Term Loans.
ARTICLE IV
THE TERM LOANS
4.1. The Term Loans. (a) The Term Loans. On the terms and subject
-------------- --------------
to the conditions contained in this Agreement, each Bank severally agrees to
make a Term Loan to the Borrower on the Initial Funding Date in an amount not to
exceed the amount set forth opposite such Bank's name on Schedule II as its
"Term Loan Commitment" (as adjusted from time to time by reason of assignments
in accordance with the provisions of Section 13.7 and as such amount may be
reduced pursuant to Section 4.3, such Bank's "Term Loan Commitment").
(b) Evidence of Debt. (i) Each Bank shall maintain in accordance
----------------
with its usual practice an account or accounts evidencing the Indebtedness to
such Bank resulting from the Term Loan made by such Bank to the Borrower,
including the amounts of principal and interest payable and paid to such Bank
from time to time hereunder.
(ii) The Register maintained by the Administrative Agent pursuant to
Section 13.7(g) shall include a "Term Loan contract control account" for each
Bank, in which account shall be recorded (A) the date and amount of any Term
Loan Borrowing hereunder, (B) the amount and type of each Bank's Term Loan
comprising such Borrowing and any Interest Period applicable thereto, (C) the
amount of any principal or interest due and payable or to become
-33-
due and payable from the Borrower to each Bank with respect to each such Term
Loan hereunder and (D) the amount of any sum received by the Administrative
Agent from the Borrower with respect to such Term Loans hereunder and each
Bank's Ratable Portion thereof.
(iii) The entries made in the Register in respect of Term Loans shall
be conclusive and binding for all purposes, absent manifest error.
4.2. Making the Term Loans. (a) The Term Loan Borrowing shall be
---------------------
made upon receipt of a Notice of Borrowing, given by the Borrower to the
Administrative Agent not later than (i) 9:30 A.M. (New York City time) on the
Initial Funding Date, in the event the Term Loan Borrowing is to be comprised of
Base Rate Loans, and (ii) 11:00 A.M. (New York City time) on the third Business
Day prior to the Initial Funding Date, in the event the Term Loan Borrowing is
to be comprised of Eurodollar Rate Loans.
(b) The Administrative Agent shall give to each Bank prompt notice
(but in any event on the same day) of its receipt of a Notice of Borrowing in
respect of Term Loans and, if Eurodollar Rate Loans are properly requested in
such Notice of Borrowing, upon its determination thereof, notice of the
applicable interest rate under Section 5.3(b). Each Bank shall, before
11:00 A.M. (or in the case of a Term Loan Borrowing being made on the same day,
before 12:00 noon) (New York City time) on the date of the proposed Term Loan
Borrowing, make available for the account of its Applicable Lending Office to
the Administrative Agent at its address referred to in Section 13.2, in
immediately available funds, such Bank's Ratable Portion of such proposed Term
Loan Borrowing. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article VI, the
Administrative Agent will make such funds available to the Borrower at the
Administrative Agent's above-referenced address.
(c) The Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of a proposed Term Loan Borrowing comprised of Eurodollar
Rate Loans, the Borrower shall indemnify each Bank against any loss, cost or
expense incurred by such Bank as a result of any failure to fulfill on or before
the date specified in the Notice of Borrowing the applicable conditions set
forth in Article VI, including, without limitation, any loss (excluding loss of
the margin payable in accordance with Section 5.2 on the amount of principal not
borrowed as a result of such failure), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds
-34-
acquired by such Bank to fund the Eurodollar Rate Loan to be made by such Bank
as part of the proposed Term Loan Borrowing when such Eurodollar Rate Loan, as a
result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from a
Bank prior to the date of the proposed Term Loan Borrowing that such Bank will
not make available to the Administrative Agent such Bank's Ratable Portion of
the Term Loan Borrowing, the Administrative Agent may assume that such Bank has
made such Ratable Portion available to the Administrative Agent on the date of
the Term Loan Borrowing in accordance with this Section 4.2 and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that
such Bank shall not have so made such Ratable Portion available to the
Administrative Agent and the Administrative Agent has so made available such
amount, such Bank and the Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Administrative Agent,
at (i) in the case of the Borrower, the interest rate applicable at the time to
the Term Loans comprising the Term Loan Borrowing and (ii) in the case of such
Bank, the Federal Funds Rate. If such Bank shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute such
Bank's Term Loan as part of such Borrowing for purposes of this Agreement. If
the Borrower shall repay to the Administrative Agent such corresponding amount,
such payment shall not relieve such Bank of any obligation it may have to the
Borrower hereunder.
(e) The failure of any Bank to make its Term Loan shall not relieve
any other Bank of its obligation, if any, hereunder to make its Term Loan on the
date of such Borrowing, but no Bank shall be responsible for the failure of any
other Bank to make the Term Loan to be made by such other Bank.
4.3. Repayment of Term Loans. (a) The principal amount of the Term
-----------------------
Loan of each Bank shall be payable in quarterly installments on January 1,
April 1, July 1 and October 1 of each year, commencing July 1, 1997, and ending
on July 1, 2002, in an amount equal to such Bank's Ratable Portion of the
quarterly amount set forth in column (y) below opposite the period specified in
column (x) during which such date occurs:
-35-
(x) (y)
Required Quarterly Amounts
Quarter of Term Loan Reduction
------- -----------------------
July 1, 1997 through
October 1, 1997 $65,670,000
January 1, 1998 through
October 1, 1999 $87,560,000
January 1, 2000 through
October 1, 2000 $109,450,000
January 1, 2001 through
July 1, 2002 $131,340,000
The amounts under (y) shall be adjusted in the amounts and in the manner
required under Section 4.4.
(b) The Borrower shall repay the outstanding principal amount of the
Term Loans (together with all accrued and unpaid interest thereon) in full on
the Commitment Termination Date.
4.4. Optional Prepayments of the Term Loans. The Borrower may, upon
--------------------------------------
at least three Business Days' prior notice (or at least one Business Day's prior
notice in the case of Base Rate Loans) to the Administrative Agent stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding principal amount of
the Term Loans, in whole or in part, together with accrued interest to the date
of such prepayment; provided, however, that the Borrower shall indemnify the
-------- -------
Banks pursuant to Section 13.4(c) in the event that any prepayment of any
Eurodollar Rate Loans shall be made on a day other than the last day of an
Interest Period for such Loans. Amounts borrowed under Section 4.1(a) and
prepaid pursuant to this Section 4.4 may not be reborrowed. Any such prepayment
of the Term Loans that is made at the Borrower's option as a result of the
receipt by the Borrower of Net Cash Proceeds of asset sales or Capital Market
Transactions shall be applied (a) 50% in order of maturity, and (b) 50% pro rata
among all remaining maturities applicable to the Term Loan Commitment; any other
prepayment made at the Borrower's option may be allocated among remaining
maturities in any manner requested by the Borrower.
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ARTICLE V
CONVERSION, INTEREST, PAYMENTS, FEES, ETC.
5.1. Conversion/Continuation Option. The Borrower may elect (i) at
------------------------------
any time to convert Base Rate Loans or any portion thereof to Eurodollar Rate
Loans or (ii) at the end of any Interest Period with respect thereto, to convert
Eurodollar Rate Loans or any portion thereof into Base Rate Loans, or to
continue such Eurodollar Rate Loans or any portion thereof as Eurodollar Rate
Loans for an additional Interest Period; provided, however, that the aggregate
-------- -------
of the Eurodollar Rate Loans of the Borrower so converted or so continued for
each Interest Period must be in the amount of $5,000,000 or an integral multiple
of $5,000,000 in excess thereof. Each such election shall be in substantially
the form of Exhibit D hereto (a "Notice of Conversion or Continuation") and
shall be made by giving the Administrative Agent at least one Business Day's, in
the case of a conversion to a Base Rate Loan, and three Business Days', in the
case of a conversion to or a continuation of a Eurodollar Rate Loan, prior
written notice thereof specifying (A) the amount and type of conversion or
continuation, (B) in the case of a conversion to or a continuation of Eurodollar
Rate Loans, the Interest Period therefor, and (C) in the case of a conversion
the date of conversion (which date shall be a Business Day and, if a conversion
from a Eurodollar Rate Loan, shall also be the last day of the Interest Period
therefor). The Administrative Agent shall promptly (but in any event on the
same day) notify each Bank of its receipt of a Notice of Conversion or
Continuation and of the contents thereof. Notwithstanding the foregoing, no
conversion in whole or in part of Base Rate Loans to Eurodollar Rate Loans, and
no continuation in whole or in part of Eurodollar Rate Loans upon the expiration
of any Interest Period therefor, shall be permitted at any time at which an
Event of Default shall have occurred and be continuing. If, within the time
period required under the terms of this Section 5.1, the Administrative Agent
does not receive a Notice of Conversion or Continuation from the Borrower
containing an election to continue all or any portion of the Eurodollar Rate
Loans for an additional Interest Period or to convert all or any portion of such
Loans, then, upon the expiration of the Interest Period therefor, such Loans or
the portions thereof for which an election to continue or convert has not been
made will be automatically converted to Base Rate Loans. Each Notice of
Conversion or Continuation shall be irrevocable.
-37-
5.2. Interest. The Borrower shall pay interest on the unpaid
--------
principal amount of each Loan from the date thereof until the principal amount
thereof shall be paid in full, at the following rates per annum:
(a) Base Rate Loans. For Base Rate Loans, at a rate per annum equal
---------------
at all times to the Base Rate in effect from time to time, payable
quarterly in arrears on the last day of each September, December, March and
June, on the Commitment Termination Date and on the date any Base Rate Loan
is converted or paid in full.
(b) Eurodollar Rate Loans. For Eurodollar Rate Loans, at a rate per
---------------------
annum equal at all times during the applicable Interest Period for each
Eurodollar Rate Loan to the sum of the Eurodollar Rate for such Interest
Period plus the Applicable Eurodollar Rate Margin, payable in arrears (i)
on the last day of such Interest Period and (ii) if such Interest Period
has a duration of more than three months, on each day during such Interest
Period that occurs every three months from the first day of such Interest
Period.
(c) Default Rate of Interest. If any amount of principal of any Loan
------------------------
is not paid when due, whether at stated maturity, by acceleration or
otherwise, the interest rate applicable to any such amount shall be
increased by 2.00% per annum, payable on demand, and if any interest, fee
or other amount payable hereunder is not paid when due, such amount shall
bear interest at a rate per annum equal at all times to the Base Rate in
effect from time to time plus 2% per annum payable on demand.
5.3. Interest Rate Determination and Protection. (a) In the event
------------------------------------------
that the Eurodollar Rate is not available from the Telerate Page, the Eurodollar
Rate for each Interest Period for Eurodollar Rate Loans shall be determined by
the Administrative Agent on the basis of applicable rates furnished to and
received by the Administrative Agent from the Reference Banks two Business Days
before such Interest Period. Each Reference Bank agrees to furnish to the
Administrative Agent timely information for the purpose of determining each
Eurodollar Rate. If any of the Reference Banks shall not furnish such timely
information to the Administrative Agent for the purpose of determining any such
interest rate, the Administrative Agent shall determine such interest rate on
the basis of timely information furnished by the other Reference Bank or
Reference Banks.
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(b) The Administrative Agent shall give prompt notice to the Borrower
and the Banks of the applicable interest rate determined by the Administrative
Agent for purposes of Section 5.2(a) or (b), and the applicable rate, if any,
furnished by each Reference Bank for the purpose of determining the applicable
interest rate under Section 5.2(b).
(c) If, with respect to Eurodollar Rate Loans, the Majority Banks
determine in good faith and notify the Administrative Agent that the Eurodollar
Rate for any Interest Period will not adequately reflect the cost to such Banks
of making such Loans or funding or maintaining their respective Eurodollar Rate
Loans for such Interest Period, the Administrative Agent shall forthwith so
notify the Borrower and the Banks, whereupon
(i) each Eurodollar Rate Loan will automatically, on the last day of
the then existing Interest Period therefor, convert into a Base Rate Loan
unless the Majority Banks notify the Administrative Agent that the
circumstances causing such conversion no longer exist and the Borrower
delivers a timely Notice of Conversion or Continuation with respect to such
Loans; and
(ii) the obligations of the Banks to make Eurodollar Rate Loans or to
convert Loans into Eurodollar Rate Loans shall be suspended until the
Administrative Agent shall notify the Borrower and the Banks that the
circumstances causing such suspension no longer exist.
5.4. Fees. (a) The Borrower will pay on the last day of each Fiscal
----
Quarter to each of the Banks quarterly in arrears a fee (the "Commitment Fee")
accruing from the tenth Business Day after the Documentation Agent has notified
the Borrower that the Agreement has been executed by the Banks (or such earlier
date on or after the execution hereof as the Merger Date shall have occurred),
in the case of each Bank listed on the signature pages hereof, and from any
later effective date of the assignment pursuant to which it became a Bank, in
the case of each other Bank, until the Commitment Termination Date, on such
Bank's aggregate average daily unused Commitment as in effect from time to time
at the rate set forth below opposite the Credit Rating applicable to the
Borrower on such date:
-39-
CREDIT RATING COMMITMENT FEE
------------- --------------
A-/A3 or better .1500%
BBB+/Baa1 .2000%
BBB/Baa2 .2250%
BBB-/Baa3 .2500%
BB+/Ba1 .3125%
BB/Ba2 .3750%
BB-/Ba3 or lower .5000%
; provided, however, that if the ratings assigned by S&P and Moody's shall
-------- -------
differ by one level, the Credit Rating shall be the rating which is the higher
level, or if they differ by more than one level, the Credit Rating shall be the
rating that is one rating level immediately above the lower of such ratings.
Any change in the Credit Rating of the Borrower shall be effective to adjust the
Commitment Fee as of the date such change is announced.
(b) The Borrower has agreed to pay to the Banks, Managing Agents,
Agents, Co-Agents and Arrangers certain other fees which are earned on the date
of the signing of this Agreement and payable on the earlier of (x) the Initial
Funding Date or (y) September 30, 1994,
as separately agreed.
5.5. Increased Costs. (a) If, due to either (i) the introduction of
---------------
or any change (other than any change by way of imposition or increase of reserve
requirements included in the Eurodollar Rate Reserve Percentage) in, or in the
interpretation of, any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost (other than with respect to income, franchise or withholding taxes or other
taxes of a similar nature) to any Bank of agreeing to make or making, funding or
maintaining any Eurodollar Rate Loans, then (A) such Bank shall, as soon as such
Bank becomes aware of such increased cost, but in any event not later than 60
days after such increased cost was incurred, deliver to the Borrower and the
Administrative Agent a certificate stating (1) the actual amount of such
increased cost incurred by such Bank and (2) that it is such Bank's customary
practice, from and after the date of this Agreement, to charge its borrowers for
increased costs incurred by it; (B) the Borrower shall, within 30 days after its
receipt of such certificate, at its sole option, either (1) pay to the
Administrative Agent for the account of such Bank amounts sufficient to
compensate such Bank for the increased cost incurred by it as set forth in the
certificate referred to above or (2) replace such Bank in
-40-
accordance with the provisions of Section 5.10, provided that if the Borrower
--------
does not exercise the option specified in clause (2) above within 30 days after
receipt of the certificate referred to above, then (x) such Bank shall deliver
to the Borrower and the Administrative Agent a second certificate stating the
increased cost incurred by such Bank and (y) the Borrower shall promptly upon
receipt of such second certificate pay to the Administrative Agent for the
account of such Bank amounts sufficient to compensate such Bank for such
increased cost; and (C) such Bank shall use its reasonable best efforts to
designate another of its then existing offices as its Applicable Lending Office
if the making of such designation would, without any detrimental effect to such
Bank, avoid the need for, or reduce the amount of, future increased costs which
are probable of being incurred by such Bank. The amount of increased costs
payable by the Borrower to any Bank as stated in any such certificate delivered
to the Borrower and the Administrative Agent pursuant to the provisions of this
Section 5.5(a) shall be conclusive and binding for all purposes, absent manifest
error. In determining any such amount, such Bank may use reasonable averaging
and attribution methods. If the Borrower so notifies the Administrative Agent
within five Business Days after receipt of any certificate delivered to the
Borrower pursuant to the provisions of this Section 5.5(a), the Borrower may
either (x) prepay in full all Eurodollar Rate Loans of such Bank then
outstanding in accordance with Section 5.8 and, additionally, reimburse such
Bank for such increased cost in accordance with this Section 5.5(a) or
(y) convert all Eurodollar Rate Loans of all Banks then outstanding into Base
Rate Loans in accordance with Section 5.1 and, additionally, reimburse such Bank
for such increased cost in accordance with this Section 5.5(a).
(b) If any Bank shall be required under Regulation D to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, then (i) such Bank shall, within 60 days after the end
of any Interest Period with respect to any Eurodollar Rate Loan during which
such Bank was so required to maintain such reserves, deliver to the Borrower and
the Administrative Agent a certificate stating (A) that such Bank was required
to maintain reserves and as a result such Bank incurred additional costs in
connection with making Eurodollar Rate Loans, (B) in reasonable detail, such
Bank's computations of the amount of additional interest payable by the Borrower
pursuant to the provisions of this Section 5.5(b)(ii) and (C) that it is such
Bank's customary practice, from and after the date of this Agreement, to charge
its borrowers for reserves so maintained by it, and
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(ii) the Borrower shall, promptly upon receipt of any such certificate, pay to
the Administrative Agent, for the account of such Bank, additional interest on
the unpaid principal amount of each Eurodollar Rate Loan of such Bank
outstanding during the Interest Period with respect to which the
above-referenced certificate was delivered to the Borrower, at a rate per annum
equal to the difference obtained by subtracting (x) the Eurodollar Rate for such
Interest Period from (y) the rate obtained by dividing such Eurodollar Rate by a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such
Bank for such Interest Period. The amount of interest payable by the Borrower
to any Bank as stated in any certificate delivered to the Borrower and the
Administrative Agent pursuant to the provisions of this Section 5.5(b) shall be
conclusive and binding for all purposes, absent manifest error.
(c) The payments required under Sections 5.5(a) and (b) are in
addition to any other payments and indemnities required under this Agreement.
5.6. Illegality. Notwithstanding any other provision of this
----------
Agreement, if the introduction of or any change in or in the interpretation of
any law or regulation, in each case after the date hereof, shall make it
unlawful, or any central bank or other Governmental Authority shall assert that
it is unlawful, for any Bank or its Eurodollar Lending Office to make Eurodollar
Rate Loans or to continue to fund or maintain Eurodollar Rate Loans, then, on
notice thereof and demand therefor by such Bank to the Borrower through the
Administrative Agent, (i) the obligation of such Bank to make or to continue
Eurodollar Rate Loans and to convert Base Rate Loans into Eurodollar Rate Loans
shall be suspended until such Bank through the Administrative Agent shall notify
the Borrower that the circumstances causing such suspension no longer exist and
(ii) the Borrower shall forthwith prepay in full all Eurodollar Rate Loans of
such Bank then outstanding, together with interest accrued thereon, unless the
Borrower, within five Business Days of such notice and demand, converts all
Eurodollar Rate Loans of all Banks then outstanding into Base Rate Loans in
accordance with the notice periods of Section 5.1; provided, however, that
-------- -------
before making any such demand, each Bank agrees to use its reasonable best
efforts to designate another of its then existing offices as its Applicable
Lending Office if the making of such a designation would, without any
detrimental effect to such Bank, cause the making of Eurodollar Rate Loans to
not be subject to this Section 5.6.
-42-
5.7. Capital Adequacy. If any Bank shall, at any time, reasonably
----------------
determine that (a) the adoption (i) after the date of this Agreement, of any
capital adequacy guidelines or (ii) at any time, of any other applicable law,
government rule, regulation or order regarding capital adequacy of banks or bank
holding companies, (b) any change in (i) any of the foregoing or (ii) the
interpretation or administration of any of the foregoing by any Governmental
Authority, central bank or comparable agency or (c) compliance with any policy,
guideline, directive or request regarding capital adequacy (whether or not
having the force of law and whether or not failure to comply therewith would be
unlawful) of any Governmental Authority, central bank or comparable agency,
would have the effect of reducing the rate of return on the capital of such Bank
to a level below that which such Bank could have achieved but for such adoption,
change or compliance (taking into consideration the policies of such Bank with
respect to capital adequacy in effect immediately before such adoption, change
or compliance) and (x) such reduction is as a consequence of the Commitment of,
or the making, converting or continuing of any Loans by, such Bank hereunder and
(y) such reduction is reasonably deemed by such Bank to be material, then
(1) such Bank shall deliver to the Borrower and the Administrative Agent a
certificate stating the reduction in the rate of return such Bank will in the
future suffer as a result of its Commitment or the making, converting or
continuing any Loans by it to the Borrower hereunder and (2) the Borrower shall,
within 30 days after its receipt of such certificate, at its sole option, either
(A) pay to the Administrative Agent for the account of such Bank from time to
time as specified by such Bank such amount as shall be sufficient to compensate
such Bank for such reduced return, or (B) replace such Bank in accordance with
the provisions of Section 5.10; provided, however, that if the Borrower does not
-------- -------
exercise the option specified in clause (B) above within 30 days after receipt
of the certificate referred to above, then (1) such Bank shall deliver to the
Borrower and the Administrative Agent a second certificate stating the reduction
in the rate of return of such Bank and (2) the Borrower shall promptly pay, as
specified by such Bank, to the Administrative Agent for the account of such Bank
amounts sufficient to compensate such Bank for the reduction in its rate of
return. The amount stated in any certificate delivered to the Borrower pursuant
to the provisions of this Section 5.7 shall be conclusive and binding for all
purposes, absent manifest error. In determining any such amount, such Bank may
use reasonable averaging and attribution methods. The payments required under
this Section 5.7 are in addition to any other payments and indemnities required
hereunder.
-43-
5.8. Payments and Computations. (a) The Borrower shall make each
-------------------------
payment payable by it hereunder not later than 11:00 A.M. (New York City time)
on the day when due, in Dollars, to the Administrative Agent at its address
referred to in Section 13.2 in immediately available funds without set-off or
counterclaim. The Administrative Agent will promptly thereafter (but in any
event on the same day) cause to be distributed like funds relating to the
payment of principal or interest or fees ratably (other than amounts payable
pursuant to Section 5.5, 5.6 or 5.7) to the Banks for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Bank to such Bank for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Payment received by the Administrative Agent after
11:00 A.M. (New York City time) shall be deemed to be received on the next
Business Day; provided, however, that the Administrative Agent shall use its
-------- -------
reasonable best efforts to invest any amounts so received by the Administrative
Agent in overnight investments satisfactory to the Borrower, and any earnings on
any such investments shall be for the Borrower's account and may be credited
against any interest payable hereunder during such period.
(b) All computations of the Commitment Fee or of interest based on
the rate of interest specified in clause (a) of the definition of Base Rate and
of fees shall be made by the Administrative Agent on the basis of a year of 365
or 366 days, as the case may be, and all computations of interest based on the
Eurodollar Rate or the Federal Funds Rate shall be made by the Administrative
Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest and fees are payable. All computations of the
Commitment Fee shall be based on the aggregate average daily unused Commitment
of each Bank. Each determination by the Administrative Agent of an interest
rate hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(c) Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or fees, as the case may be.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower
-44-
will not make such payment in full, the Administrative Agent may assume that the
Borrower has made such payment in full to the Administrative Agent on such date
and the Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent that the Borrower shall not have so made such
payment in full to the Administrative Agent, each Bank shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate.
5.9. Sharing of Payments, Etc. If any Bank shall obtain any payment
-------------------------
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Loans made by it (other than pursuant to Section
5.5, 5.6 or 5.7) in excess of its Ratable Portion of payments on account of the
Loans obtained by all the Banks, such Bank shall forthwith purchase from the
other Banks such participations in the Loans made by them as shall be necessary
to cause such purchasing Bank to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess payment is
-------- -------
thereafter recovered from such purchasing Bank, such purchase from each Bank
shall be rescinded and each such Bank shall repay to the purchasing Bank the
purchase price to the extent of such recovery together with an amount equal to
such Bank's ratable share (according to the proportion of (i) the amount of such
Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower
agrees that any Bank so purchasing a participation from another Bank pursuant to
this Section 5.9 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Bank were the direct creditor of the Borrower
in the amount of such participation.
5.10. Replacement Banks. Upon the election of the Borrower to
-----------------
replace any Bank pursuant to the provisions of Section 5.5(a)(B)(2) or
5.7(2)(B), the Borrower shall provide to the Administrative Agent a notice
setting forth the replacement Bank or Banks, and the Bank being so replaced
shall take all actions as may be necessary to transfer to such replacement Bank
or Banks all of the rights and obligations of such Bank hereunder and such
replacement
-45-
Bank or Banks shall pay to the Bank being so replaced the amount outstanding of
all Loans made by such Bank hereunder (with appropriate provisions for other
amounts due to the Bank being replaced), all as though such replacement Bank or
Banks were an assignee or assignees of such Bank to which such Bank were making
an assignment in accordance with the provisions of Section 13.7.
ARTICLE VI
CONDITIONS OF LENDING
6.1. Conditions Precedent to the Making of the Initial Loans. The
-------------------------------------------------------
making of the initial Loans hereunder is subject to satisfaction of the
conditions precedent that the Managing Agents shall have received the following,
in form and substance satisfactory to the Managing Agents, and in sufficient
copies for each Bank that requests a copy:
(a) Certified copies of (i) the resolutions of the Board of Directors
of each Loan Party approving each Loan Document to which it is a party, and
(ii) all documents evidencing any other necessary corporate action and
required governmental and any third party approvals, licenses and consents
with respect to each Loan Document to which it is a party.
(b) A copy of the certificate of incorporation of each Loan Party
certified as of a recent date by the Secretary of State of such Person's
jurisdiction of incorporation, together with certificates of such official
attesting to the good standing of such Person, and a copy of the By-Laws of
each such Person certified by its Secretary or one of its Assistant
Secretaries.
(c) A certificate of the Secretary or an Assistant Secretary of each
Loan Party certifying the names and true signatures of its officers who
have been authorized to execute and deliver each Loan Document to which it
is a party and each other document and certificate to be executed or
delivered hereunder on behalf of such Person.
(d) A favorable opinion of (i) Shearman & Sterling, special counsel
to the Loan Parties, in substantially the form of Exhibit E-1 hereto, and
(ii) of Philippe P. Dauman, General Counsel to the Loan Parties, in
substantially the form of Exhibit E-2 hereto.
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(e) A duly executed Subsidiary Facility.
(f) A duly executed VII Guarantee.
(g) A duly executed Parent Guarantee.
(h) A duly executed Paramount Affiliate Guarantee.
(i) A duly executed Paramount Parent Guarantee.
(j) Evidence satisfactory to the Managing Agents that the Merger has
been declared effective by the State of Delaware in accordance with the
terms of the Merger Agreement.
6.2. Additional Conditions Precedent to the Making of the Initial
------------------------------------------------------------
Loans. The making of the initial Loans hereunder is subject to the further
- - -----
conditions precedent that on the date of such Loans the following statements
shall be true:
(a) The Borrower shall have paid all costs, accrued and unpaid fees
and expenses referred to in Sections 5.4 and 13.4 (including, without
limitation, the legal fees and expenses referred to in Section 13.4(a)), in
each case to the extent then due and payable.
(b) All Indebtedness of the Borrower, Viacom International, Paramount
and the MSubs under (i) the Existing Borrower Credit Agreement; (ii) the
Existing Viacom International Credit Agreements; and (iii) the Existing
Paramount Credit Agreement shall have been (or shall simultaneously be)
repaid and all commitments thereunder cancelled.
6.3. Conditions Precedent to the Making of Each Loan. The obligation
-----------------------------------------------
of each Bank to make any Loan, including the initial Loans, shall be subject to
the further conditions precedent that the following statements shall be true on
the date of such Loan, before and after giving effect thereto and to the
application of the proceeds therefrom (and the acceptance by the Borrower of the
proceeds of such Loan shall constitute a representation and warranty by the
Borrower that on the date of such Loan such statements are true):
(a) The representations and warranties contained in Article VII
hereof (other than those stated to be made as of a particular date) are
true and correct in
-47-
all material respects on and as of such date as though made on and as of
such date.
(b) No event has occurred and is continuing, or would result from the
Loans being made on such date, which constitutes a Default or an Event of
Default.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement, the Borrower
represents and warrants to the Banks as follows:
7.1. Corporate Existence; Compliance with Law. The Borrower, each
----------------------------------------
other Loan Party and each other Material Subsidiary (i) is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation; (ii) is duly qualified and in good standing
as a foreign corporation under the laws of each other jurisdiction in which the
failure so to qualify is reasonably probable to have a Material Adverse Effect;
(iii) has all requisite corporate power and authority to conduct its business as
now being conducted and as proposed to be conducted; (iv) is in compliance with
its articles or certificate of incorporation and by-laws; and (v) is in
compliance with all applicable Requirements of Law except such non-compliance as
would not have a Material Adverse Effect.
7.2. Corporate Power; Authorization; Enforceable Obligations. (a)
-------------------------------------------------------
The execution, delivery and performance by each Loan Party of this Agreement or
any other Loan Document to which it is a party:
(i) are within its corporate powers;
(ii) have been duly authorized by all necessary corporate action;
(iii) do not (A) contravene its certificate of incorporation or
by-laws, (B) violate any law or regulation (including, without limitation,
Regulations G, T, U or X of the Board of Governors of the Federal Reserve
System), or any order or decree of any court or governmental
instrumentality, except those as to which the failure to comply would not
have a Material Adverse Effect, (C) conflict with or result in the breach
of, or constitute a default under, any instrument, document
-48-
or agreement binding upon and material to such Loan Party, or (D) result in
the creation or imposition of any Lien upon any of the Property of the
Borrower or any of its Subsidiaries; and
(iv) do not require the consent of, authorization by, approval of,
notice to, or filing or registration with, any Governmental Authority
(except for filing copies of Loan Documents with the Securities and
Exchange Commission).
(b) This Agreement and each other Loan Document has been duly
executed and delivered by each Loan Party that is a party hereto or thereto, and
is the legal, valid and binding obligation of each such Person, enforceable
against it in accordance with its terms, except where such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or equitable principles
relating to enforceability.
7.3. Taxes. All federal, and all material state, local and foreign
-----
tax returns, reports and statements required to be filed by the Borrower or any
of its Subsidiaries have been filed with the appropriate governmental agencies
in all jurisdictions in which such returns, reports and statements are required
to be filed. All consolidated, combined or unitary returns which include the
Borrower or any of its Subsidiaries have been filed with the appropriate
governmental agencies in all jurisdictions in which such returns, reports and
statements are required to be filed except where such filing is being contested
or may be contested. All federal, and all material state, local and foreign
taxes, charges and other impositions of the Borrower, its Subsidiaries or any
consolidated, combined or unitary group which includes the Borrower or any of
its Subsidiaries which are due and payable have been timely paid prior to the
date on which any fine, penalty, interest, late charge or loss may be added
thereto for non-payment thereof except where contested in good faith and by
appropriate proceedings if adequate reserves therefor have been established on
the books of the Borrower or such Subsidiary in accordance with GAAP. Proper
and accurate amounts have been withheld by or on behalf of the Borrower and each
of its Subsidiaries from their respective employees for all periods in full and
complete compliance with the tax, social security and unemployment withholding
provisions of applicable federal, state, local and foreign law and such
withholdings have been timely paid to the respective governmental agencies, in
all material respects. Neither the Borrower nor any of its Tax Affiliates has
agreed or has
-49-
been requested to make any adjustment under Section 481(a) of the Code by reason
of a change in accounting method or otherwise relating to the Borrower or any of
its Subsidiaries which will affect a taxable year of the Borrower or a Tax
Affiliate ending after December 31, 1993, which has not been reflected in the
financial statements delivered pursuant to Section 9.8 and which would have a
Material Adverse Effect. The Borrower has no obligation under any tax sharing
agreement or other tax sharing arrangement, other than the Tax Sharing Agreement
and tax sharing agreements or other tax sharing arrangements providing for
payments to Subsidiaries of the Borrower which are Tax Affiliates, which do not
have a Material Adverse Effect.
7.4. Financial Information. (a) The reports of the Borrower on Form
---------------------
10-K for the Fiscal Year ended December 31, 1993 as amended by Amendment No. 1
on Form 10-K/A dated May 2, 1994 and on Form 10-Q for the Fiscal Quarter ended
March 31, 1994, the reports of Viacom International on Form 10-K for the Fiscal
Year ended December 31, 1993 as amended by Amendment No. 1 on Form 10-K/A dated
May 2, 1994 and on Form 10-Q for the Fiscal Quarter ended March 31, 1994 and the
Transition Report of Paramount on Form 10-K for the six month period ended
April 30, 1993, as amended by Amendment No. 1 on Form 10-K/A dated September 28,
1993, as further amended by Amendment No. 2 on Form 10-K/A dated September 30,
1993 and as further amended by Amendment No. 3 on Form 10-K/A dated March 21,
1994 and the Quarterly Reports of Paramount on Form 10-Q for the three months
ended July 31, 1993, the six months ended October 31, 1993 and the nine months
ended January 31, 1994, are respectively complete and correct in all material
respects as of such respective dates, and the financial statements therein have
been prepared in accordance with GAAP and fairly present the financial condition
and results of operations of the Borrower and its consolidated Subsidiaries as
of such respective dates (subject, in the case of such reports on Form 10-Q, to
changes resulting from normal year-end adjustments).
(b) Since March 31, 1994, there has been no Material Adverse Change
or Material Credit Agreement Change.
(c) None of the Borrower or any Subsidiary of the Borrower had at
March 31, 1994 any obligation, contingent liability, or liability for taxes or
long-term leases material to the Borrower and its Subsidiaries taken as a whole
which is not reflected in the balance sheets referred to in subsection (a) above
or in the notes thereto.
-50-
7.5. Litigation. There are no pending, or to the best knowledge of
----------
the Borrower threatened, actions, investigations or proceedings against or
affecting the Borrower or any of its Subsidiaries before any court, governmental
agency or arbitrator in which, individually or in the aggregate, there is a
reasonable probability of an adverse decision that could have a Material Adverse
Effect or result in a Material Credit Agreement Change.
7.6. Margin Regulations. The Borrower is not engaged in the business
------------------
of extending credit for the purpose of purchasing or carrying Margin Stock, and
no proceeds of any Borrowing will be used to purchase or carry any Margin Stock
or to extend credit to others for the purpose of purchasing or carrying any
Margin Stock in violation of Regulation U.
7.7. ERISA. (a) No liability under Sections 4062, 4063, 4064 or
-----
4069 of ERISA has been or is expected by the Borrower to be incurred by the
Borrower or any ERISA Affiliate with respect to any Plan which is a Single-
Employer Plan in an amount that could reasonably be expected to have a Material
Adverse Effect.
(b) No Plan which is a Single-Employer Plan had an accumulated
funding deficiency, whether or not waived, as of the last day of the most recent
fiscal year of such Plan ended prior to the date hereof. Neither the Borrower
nor any ERISA Affiliate is (A) required to give security to any Plan which is a
Single-Employer Plan pursuant to Section 401(a)(29) of the Code or Section 307
of ERISA, or (B) subject to a Lien in favor of such a Plan under Section 302(f)
of ERISA.
(c) Each Plan of the Borrower, each of its Subsidiaries and each of
its ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the Code, except where the failure to comply
would not result in any Material Adverse Effect.
(d) Neither the Borrower nor any of its Subsidiaries has incurred a
tax liability under Section 4975 of the Code or a penalty under Section 502(i)
of ERISA in respect of any Plan which has not been paid in full, except where
the incurrence of such tax or penalty would not result in a Material Adverse
Effect.
(e) None of the Borrower, any of its Subsidiaries or any ERISA
Affiliate has incurred or reasonably expects to incur any Withdrawal Liability
under Section 4201 of ERISA as a result of a complete or partial withdrawal from
a
-51-
Multiemployer Plan which will result in Withdrawal Liability to the Borrower,
any of its Subsidiaries or any ERISA Affiliate in an amount that could
reasonably be expected to have a Material Adverse Effect.
7.8. No Defaults. Neither the Borrower nor any of its Subsidiaries
-----------
is in breach of or default under or with respect to any instrument, document or
agreement binding upon the Borrower or such Subsidiary which breach or default
is reasonably probable to have a Material Adverse Effect or result in the
creation of a Lien on any Property of the Borrower or its Subsidiaries.
7.9. Investment Company Act. The Borrower is not an "investment
----------------------
company" or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended. The making of the Loans by the Banks, the
application of the proceeds and repayment thereof by the Borrower and the
consummation of the transactions contemplated by this Agreement will not violate
any provision of such act or any rule, regulation or order issued by the
Securities and Exchange Commission thereunder.
7.10. Insurance. All policies of insurance of any kind or nature
---------
owned by the Borrower and its Subsidiaries are maintained with financially sound
and reputable insurers. The Borrower currently maintains insurance with respect
to its Properties and business and causes its Subsidiaries to maintain insurance
with respect to their Properties and business against loss or damage of the
kinds customarily insured against by corporations engaged in the same or similar
business and similarly situated, of such types and in such amounts as are
customarily carried under similar circumstances by such other corporations
including, without limitation, workers' compensation insurance.
7.11. Environmental Protection. (a) There are no known conditions
------------------------
or circumstances associated with the currently or previously owned or leased
properties or operations of the Borrower or its Subsidiaries or tenants which
may give rise to any Environmental Liabilities and Costs which would have a
Material Adverse Effect; and
(b) No Environmental Lien has attached to any Property of the
Borrower or any of its Subsidiaries which would have a Material Adverse Effect.
7.12. Title and Liens. Each of the Borrower and each of its
---------------
Subsidiaries has good and marketable title to
-52-
its real properties and owns or leases under Capitalized Leases all its other
material Properties, in each case, as shown on its most recent balance sheet,
and none of such Properties is subject to any Lien except as permitted under
this Agreement.
7.13. Trademarks, Copyrights, Etc. The Borrower and each of its
----------------------------
Subsidiaries own or have the rights to such trademarks, service marks, trade
names, copyrights, licenses or rights in any thereof, as in the aggregate are
adequate in the reasonable judgment of the Borrower for the conduct of the
business of the Borrower and its Subsidiaries as now conducted.
7.14. FCC Licenses, Franchises. The Borrower and its Subsidiaries
------------------------
have all the FCC Licenses necessary for the conduct of their respective
businesses as now being conducted. The Borrower and its Subsidiaries are in
substantial compliance with the Federal Communications Act of 1934, as amended,
and with the rules and regulations thereunder except for such non-compliance
which would not have a Material Adverse Effect. Neither the Borrower nor any of
its Subsidiaries is a party to, nor has any knowledge of, any investigation,
notice of violation, order or complaint issued by or before the FCC, in which
there is a reasonable probability of an adverse decision which is reasonably
probable to have a Material Adverse Effect. The operation and maintenance of
the towers and any antenna systems relating to each of the broadcast Properties
owned by the Borrower and its Subsidiaries or used in connection with the
transmission of signals therefrom do not violate any Requirement of Law except
for such non-compliance which would not have a Material Adverse Effect. The
Borrower and its Subsidiaries have all the Franchises necessary for the conduct
of their businesses as now being conducted and are in substantial compliance
with the requirements of such Franchises, except for such non-compliance which
would not have a Material Adverse Effect. The Borrower and its Subsidiaries
have no reason to believe that any FCC License or any Franchise of the Borrower
and its Subsidiaries will not be renewed in the ordinary course except for such
nonrenewal which would not have a Material Adverse Effect.
7.15. Disclosure. All written information relating to the Borrower
----------
and its Subsidiaries which has been delivered to the Banks in connection with
the Loan Documents prior to the Initial Funding Date was complete and correct in
all material respects, taken as a whole. Any financial projections and other
information regarding anticipated future plans or developments contained therein
was based upon good faith estimates and assumptions believed by the
-53-
Borrower to be reasonable at the time made, it being recognized by the Banks
that such projections and other information regarding future events are not to
be viewed as facts and that actual results or developments during the period or
periods covered may differ from the delivered projections and other prospective
information.
ARTICLE VIII
FINANCIAL COVENANTS
As long as any of the Loans shall remain unpaid or any Bank shall have
any Commitment hereunder, unless otherwise agreed by the written consent of the
Majority Banks:
8.1. Total Leverage Ratio. The Total Leverage Ratio shall not
--------------------
exceed, as of the Initial Funding Date or the last day of any Fiscal Quarter end
date described below, the amount specified with respect to such period:
Date Ratio
---- -----
Initial Funding Date and at 7.15x
September 30, 1994
December 31, 1994 7.00x
March 31, 1995 through 6.75x
September 30, 1995
December 31, 1995 through 6.25x
September 30, 1996
December 31, 1996 5.75x
March 31, 1997 through 5.25x
December 31, 1997
March 31, 1998 through 4.50x
December 31, 1998
Thereafter 4.00x
8.2. Ratio of EBIDT to Trailing Total Cash Interest and Preferred
------------------------------------------------------------
Dividends. The ratio of EBIDT to Total Cash Interest and Preferred Dividends
- - ---------
shall not be less, as of the Initial Funding Date or the last day of any Fiscal
Quarter occurring during any period set forth below, than the amount specified
with respect to such period:
-54-
Date Ratio
---- -----
Initial Funding Date and September 30,
1994 through December 31, 1994 1.50x
March 31, 1995 through December 31, 1995 1.70x
March 31, 1996 through December 31, 1996 2.00x
March 31, 1997 and thereafter 2.25x
In calculating Total Cash Interest and Preferred Dividends for purposes of this
Section 8.2, for the period from January 1, 1994 to (i) March 31, 1994, Total
Cash Interest and Preferred Dividends for such period shall be multiplied by
four, and (ii) September 30, 1994, Total Cash Interest and Preferred Dividends
for such period shall be multiplied by four-thirds.
8.3. Minimum Net Worth. On the last day of each Fiscal Quarter,
-----------------
commencing September 30, 1994, the Net Worth of the Borrower and its
Subsidiaries shall not be less than 75% of the Net Worth of the Borrower and its
Subsidiaries at the first Fiscal Quarter end after the Merger.
ARTICLE IX
AFFIRMATIVE COVENANTS
As long as any of the Loans shall remain unpaid or any Bank shall have
any Commitment hereunder, unless otherwise agreed by the written consent of the
Majority Banks:
9.1. Compliance with Laws, Etc. The Borrower shall comply, and cause
--------------------------
each of its Subsidiaries to comply, in all material respects with all
Requirements of Law, all FCC Licenses and Franchises except such non-compliance
as would not have a Material Adverse Effect or result in a Material Credit
Agreement Change.
9.2. Payment of Taxes, Etc. The Borrower and any consolidated,
----------------------
combined or unitary group which includes the Borrower or any of its Subsidiaries
shall pay and discharge, and cause each Subsidiary of the Borrower to pay and
discharge, before the same shall become delinquent, all lawful claims, taxes,
assessments and governmental charges or levies except where contested in good
faith, by proper proceedings, and where adequate reserves therefor have been
established on the books of the Borrower or such Subsidiary in accordance with
GAAP.
-55-
9.3. Maintenance of Insurance. The Borrower shall maintain, and
------------------------
cause each of its Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the Borrower or
such Subsidiary operates. The Borrower will furnish to the Administrative Agent
from time to time such information as may be requested as to such insurance.
9.4. Preservation of Corporate Existence, Etc. The Borrower shall
-----------------------------------------
preserve and maintain, and cause each of its Subsidiaries to preserve and
maintain, their respective corporate existences; provided, however, that the
-------- -------
corporate existence of any Subsidiary (other than a Guarantor Subsidiary) may be
terminated if, in the good faith judgment of the board of directors or the chief
financial officer of the Borrower, such termination is in the best interest of
the Borrower and such termination would not have a Material Adverse Effect; and
---
provided further, however, that the Borrower may merge into Viacom
- - -------- ------- -------
International, with Viacom International as the surviving corporation, provided
--------
that upon the effectiveness of such merger, Viacom International shall assume,
pursuant to an instrument satisfactory to the Managing Agents, the obligations
of the Borrower hereunder and under the other Loan Documents.
9.5. Books and Access. The Borrower shall, and shall cause each of
----------------
its Subsidiaries to, keep proper books of record and accounts in conformity with
GAAP, and upon reasonable notice and at such reasonable times during the usual
business hours as often as may be reasonably requested, permit representatives
of the Administrative Agent, at its own initiative or at the request of any
Bank, to make inspections of its Properties, to examine its books, accounts and
records and make copies and memoranda thereof and to discuss its affairs and
finances with its officers or directors and independent public accountants.
9.6. Maintenance of Properties, Etc. The Borrower shall maintain and
-------------------------------
preserve, and cause each of its Subsidiaries to maintain and preserve, all of
its Properties which are used or useful in the conduct of its business in good
working order and condition and, from time to time make or cause to be made all
appropriate repairs, renewals and replacements, except where the failure to do
so would not have a Material Adverse Effect.
9.7. Application of Proceeds. The Borrower shall use the proceeds of
-----------------------
the Loans (i) to refinance certain
-56-
Indebtedness existing at the date hereof of the Borrower and its Subsidiaries,
(ii) to provide support for its Commercial Paper and competitive bid programs,
and (iii) for other general corporate purposes.
9.8. Financial Statements. The Borrower shall furnish to the Banks:
--------------------
(a) as soon as available but not later than sixty (60) days after the
close of each of the first three (3) Fiscal Quarters of each Fiscal Year of the
Borrower, (i) consolidated and consolidating balance sheets of the Borrower and
its Subsidiaries as at the end of such Fiscal Quarter and the related
consolidated and consolidating statements of operations, the consolidated
statement of shareholders' equity and the consolidated statement of cash flows
of the Borrower and its Subsidiaries for such Fiscal Quarter and (in the case of
the second and third Fiscal Quarters) for the period from the beginning of the
then current Fiscal Year to the end of such Fiscal Quarter, setting forth in
each case in comparative form the consolidated figures for the corresponding
periods of the previous Fiscal Year, all in reasonable detail and certified by a
Responsible Financial Officer of the Borrower as fairly presenting, in
accordance with GAAP, the financial condition and results of operations of the
Borrower and its Subsidiaries, subject to changes resulting from normal year-end
audit adjustments; and (ii) a report certified by such Responsible Financial
Officer of all commitments for program license fees that are not reflected on
the balance sheets referred to above in excess of Five Million Dollars
($5,000,000) for any one such commitment or series of related commitments
incurred by the Borrower or any Subsidiary during such Fiscal Quarter, together
with a statement of all such obligations outstanding at the end of such Fiscal
Quarter;
(b) (i) as soon as available but no later than one hundred twenty
(120) days after the close of each Fiscal Year of the Borrower, (A) consolidated
and consolidating balance sheets of the Borrower and its Subsidiaries as at the
end of such year and the related consolidated and consolidating statements of
operations, the consolidated statement of shareholders' equity and the
consolidated statement of cash flows of the Borrower and its Subsidiaries for
such year, setting forth in each case in comparative form the consolidated and
consolidating figures for the previous Fiscal Year, all in reasonable detail and
certified in the case of the consolidated financial statements by Price
Waterhouse or another firm of nationally recognized independent public
accountants, which report shall state
-57-
without qualification as to the scope of the audit or as to going concern that
such consolidated financial statements present fairly the financial position and
the results of operations as at the dates and for the periods indicated in
conformity with GAAP and that the audit by such accountants in connection with
such consolidated financial statements has been made in accordance with GAAS,
and (B) a report certified by a Responsible Financial Officer of all commitments
for program license fees that are not reflected on the balance sheets referred
to above in excess of Five Million Dollars ($5,000,000) for any one such
commitment or series of related commitments incurred by the Borrower or any
Subsidiary during the last Fiscal Quarter of such Fiscal Year, together with a
statement of all such obligations at the end of such Fiscal Quarter; (ii) as
soon as available but not later than one hundred twenty (120) days after the
close of each Fiscal Year of the Borrower, a certificate from such accounting
firm that in the course of the regular audit of the business of the Borrower and
its Subsidiaries, which audit was conducted by such accounting firm in
accordance with GAAS, such accounting firm obtained no knowledge that an Event
of Default or Default has occurred and is continuing or, if in the opinion of
such accounting firm, an Event of Default or Default has occurred and is
continuing, a statement as to the nature thereof;
(c) together with each delivery of financial statements of the
Borrower pursuant to clauses (a) and (b) above and commencing with the Fiscal
Quarter ending September 30, 1994, a certificate issued by a Responsible
Financial Officer of the Borrower (i) demonstrating compliance at the end of the
accounting period described in such statements with the financial covenants
contained herein and (ii) containing in reasonable detail the component figures
contained in the respective total figures stated in such certificate;
(d) together with each delivery of financial statements of the
Borrower and its Subsidiaries pursuant to clauses (a) or (b) above, and
commencing with the Fiscal Quarter ending September 30, 1994, a certificate
signed by a Responsible Financial Officer of the Borrower stating that (i) such
officer is familiar with both this Agreement and the business and financial
condition of the Borrower, and (ii) no Event of Default or Default has occurred
and is continuing or if an Event of Default or Default has occurred and is
continuing a statement as to the nature thereof, and whether or not the same
shall have been cured; and
(e) on any date of its choosing following the consummation of any
sale of assets and the application of
-58-
all or a portion thereof to reduce outstanding Indebtedness, a certificate
signed by a Responsible Financial Officer of the Borrower demonstrating on a pro
forma basis after giving effect to the sale that the Total Leverage Ratio
(taking into account its EBIDT through June 30, 1994 or the last day of the most
recently completed Fiscal Quarter for which financial statements have been
delivered to the Banks pursuant to this Section 9.8) is equal to or less than
6.50x.
9.9. Reporting Requirements. The Borrower shall furnish to the
----------------------
Administrative Agent for distribution to the Banks:
(a) from time to time as the Administrative Agent may reasonably
request, copies of such statements, lists of Property, accounts, budgets,
forecasts, reports or information prepared by or for the Borrower or within the
Borrower's control;
(b) promptly and in any event within thirty (30) days after the
Borrower, any of its Subsidiaries or any ERISA Affiliate knows that any ERISA
Event has occurred (other than a Reportable Event for which notice to the PBGC
is waived), a written statement of the chief financial officer or other
appropriate officer of the Borrower describing such ERISA Event and the action,
if any, which the Borrower, any of its Subsidiaries or any ERISA Affiliate
proposes to take with respect thereto, and a copy of any notice filed with the
PBGC or the IRS pertaining thereto;
(c) promptly and in any event within thirty (30) days after notice or
knowledge thereof, notice that the Borrower or any of its Subsidiaries becomes
subject to the tax on prohibited transactions imposed by Section 4975 of the
Code, together with a copy of Form 5330;
(d) promptly after the commencement thereof, notice of all actions,
suits and proceedings before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, against or
affecting the Borrower or any of its Subsidiaries, in which there is a
reasonable probability of an adverse decision which would have a Material
Adverse Effect;
(e) promptly upon the Borrower or any of its Subsidiaries learning of
(i) any Event of Default or any Default, or (ii) any Material Credit Agreement
Change, telephonic or telegraphic notice specifying the nature of such Event of
Default, Default or Material Credit Agreement Change, including the anticipated
effect thereof, which
-59-
notice shall be promptly confirmed in writing within five days;
(f) promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to its security holders generally, and copies
of all reports and registration statements which the Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission or any national
securities exchange;
(g) promptly upon, and in any event within 30 days of, the Borrower
or any of its Subsidiaries learning of any of the following:
(i) notice that any Property of the Borrower or any of its
Subsidiaries is subject to any Environmental Liens individually or in the
aggregate which would have a Material Adverse Effect;
(ii) any proposed acquisition of stock, assets or real estate, or any
proposed leasing of Property, or any other action by the Borrower or any of
its Subsidiaries in which there is a reasonable probability that the
Borrower or any of its Subsidiaries would be subject to any material
Environmental Liabilities and Costs, provided that, in the event of any
--------
such proposed acquisition or lease, the Borrower must furnish to the Banks
evidence in a form acceptable to the Banks that the proposed acquisition
will not have a Material Adverse Effect;
(h) prior to the effectiveness thereof, information relating to any
proposed change in the accounting treatment or reporting practices of the
Borrower and its Subsidiaries the nature or scope of which materially affects
the calculation of any component of any financial covenant, standard or term
contained in this Agreement;
(i) promptly upon the Borrower learning of any material Franchise or
material FCC License being revoked, canceled or terminated, or renewal thereof
denied for any reason, written notice specifying the reasons for such
revocation, cancellation, termination or denial, the anticipated effect thereof,
and the actions, if any, being taken by the Borrower to remedy the same; and
(j) from time to time, such other information and materials as the
Administrative Agent may reasonably request.
-60-
ARTICLE X
NEGATIVE COVENANTS
So long as any of the Loans shall remain unpaid or any Bank shall have
any Commitment hereunder, without the written consent of the Majority Banks:
10.1. Liens, Etc. The Borrower shall not, directly or indirectly,
-----------
create or suffer to exist, or permit any of its Subsidiaries to create or suffer
to exist, any Lien upon or with respect to any of its Properties, whether now
owned or hereafter acquired, or assign, or permit any of its Subsidiaries to
assign, any right to receive income, in each case to secure or provide for the
payment of any Indebtedness of any Person, except:
(i) purchase money Liens or purchase money security interests upon or
in any Property acquired or held by the Borrower or any Subsidiary of the
Borrower in the ordinary course of business to secure the purchase price of
such Property or to secure Indebtedness incurred solely for the purpose of
financing the acquisition of such Property;
(ii) Liens on Property of Paramount or any of its Subsidiaries, or on
Property of the Borrower or any of its Subsidiaries that was Property of
Paramount prior to the Merger, in each case to the extent that such Liens
exist prior to the Merger;
(iii) Liens existing on Property at the time of its acquisition
(other than any such Lien created in contemplation of such acquisition);
(iv) Liens on Property of Persons which become Subsidiaries after the
Initial Funding Date securing Indebtedness existing, with respect to any
such Person, on the date such Person becomes a Subsidiary (other than any
such Lien created in contemplation of such Person becoming a Subsidiary);
(v) Liens on Property of Persons which become Subsidiaries after the
Initial Funding Date securing Indebtedness incurred by such Person after
the date such Person becomes a Subsidiary; provided, however, that the
-------- -------
aggregate principal amount of Indebtedness referred to in this clause
(v) secured by Liens shall not exceed $30,000,000 at any time outstanding;
-61-
(vi) Liens upon or in the satellite transponders listed on Schedule
10.1(a) (and directly related Property) to secure the purchase price of
such transponders, or to secure Indebtedness incurred for the purpose of
financing or refinancing the acquisition of such transponders;
(vii) Liens listed on Schedule 10.1(b); and
(viii) any Lien securing the renewal, extension or refunding of any
Indebtedness secured by any Lien permitted by clause (i), (ii), (iii),
(iv), (v), (vi) or (vii) above.
10.2. Mergers. The Borrower shall not, nor shall it permit any of
-------
its Subsidiaries representing a substantial portion of the assets of the
Borrower and its Subsidiaries taken as a whole to, merge or consolidate in any
transaction in which such entity is not the surviving Person other than: (i) in
mergers of any Subsidiary into the Borrower or any other wholly owned Subsidiary
of the Borrower; or (ii) in a merger of the Borrower into Viacom International
with Viacom International as the surviving corporation, provided that upon the
--------
effectiveness of such merger, Viacom International shall assume, pursuant to an
instrument satisfactory to the Managing Agents, the obligations of the Borrower
hereunder and under the other Loan Documents.
10.3. Substantial Asset Sale. The Borrower shall not, and shall not
----------------------
permit any of its Subsidiaries to, sell assets constituting all or a substantial
portion of consolidated assets of the Borrower and its Subsidiaries taken as a
whole to any Person other than to the Borrower or its wholly owned Subsidiary.
10.4. Transactions with Affiliates. The Borrower shall not engage
----------------------------
in, and will not permit any of its Subsidiaries to engage in, any transaction
with an Affiliate of the Borrower or of such Subsidiary (other than transactions
in the ordinary course of business between a Subsidiary and its parent or among
Subsidiaries of the Borrower) except on terms no less favorable to the Borrower
or such Subsidiaries than as would be obtained in a comparable arm's-length
transaction.
10.5. Margin Stock. The Borrower shall not permit more than twenty-
------------
five percent (25%) of the value, within the meaning of Regulation U, as
determined by any reasonable method, of the assets of the Borrower and its
Subsidiaries, or of any Guarantor Subsidiary, to be Margin Stock, nor will the
Borrower use the proceeds of any Loan to
-62-
purchase or carry any Margin Stock in violation of Regulation U.
10.6. Subsidiary Indebtedness. The Borrower shall not permit any of
-----------------------
its Subsidiaries, other than a Guarantor Subsidiary, to incur Indebtedness for
borrowed money other than the Subsidiary Loans (as defined in the Subsidiary
Facility).
10.7. Other Restrictions on Indebtedness. The Borrower shall not,
----------------------------------
and shall not permit any Subsidiary Guarantor to, incur Indebtedness for
borrowed money (other than Commercial Paper) maturing earlier than six months
after the Commitment Termination Date and on terms no more onerous than the
terms hereof.
ARTICLE XI
EVENTS OF DEFAULT
11.1. Events of Default. If any of the following events ("Events of
-----------------
Default") shall occur and be continuing:
(a) The Borrower or any other Loan Party shall fail to pay (i) any
principal when due in accordance with the terms and provisions of this
Agreement or any other Loan Document, or (ii) any interest on any amounts
due hereunder or thereunder, or any fee or any other amount due hereunder
or thereunder within three Business Days after the same becomes due and
payable; or
(b) Any representation or warranty made by any Loan Party in this
Agreement or any other Loan Document or by any Loan Party (or any of its
officers) in connection with this Agreement or any other Loan Document
shall prove to have been incorrect in any material respect when made; or
(c) Any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in this Agreement or any other Loan
Document, which failure or change shall remain unremedied for fifteen days
after the earlier of the date on which (i) telephonic or telegraphic notice
thereof shall have been given to the Administrative Agent by the Borrower
pursuant to Section 9.9(e), or (ii) written notice thereof shall have been
given to the Borrower by the Administrative Agent or any Bank; or
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(d) The Borrower or any of its Subsidiaries shall fail to pay any
principal of, or premium or interest on, any Indebtedness in an aggregate
principal amount of $50,000,000 or more (excluding Indebtedness hereunder)
of the Borrower or such Subsidiary, when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise); or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Indebtedness, if the
effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness or to terminate any
commitment to lend; or any such Indebtedness shall be declared to be due
and payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof and, with
respect to all of the foregoing, after the expiration of any applicable
grace period or the giving of any required notice or both; provided,
--------
however, that no extension of any grace period applicable to any such
-------
Indebtedness shall be taken into account for the purposes of this
subsection (d); or
(e) There shall occur and be continuing an Event of Default under
(and as defined in) the Subsidiary Facility; or
(f) The Borrower or any of its Material Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors, or any proceedings shall be instituted by or
against the Borrower or any of its Material Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee or other similar official
for it or for a material part of its Property employed in its business or
any writ, attachment, execution or similar process shall be issued or
levied against a material part of the Property employed in the business of
the Borrower and its Subsidiaries taken as a whole, and, in the case of any
such proceedings instituted against the Borrower or any of its Material
Subsidiaries (but not instituted by it), either such proceedings shall
remain undismissed or unstayed for a
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period of 60 days or any of the actions sought in such proceedings shall
occur; or the Borrower or any of its Material Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in this
subsection (f); or
(g) Any order for the payment of money or judgment of any court, not
appealable or not subject to certiorari or appeal (a "Final Judgment"),
which, with other outstanding Final Judgments, exceeds an aggregate of
$50,000,000 shall be rendered against the Borrower or any of its Material
Subsidiaries and, within 60 days after entry thereof, such Final Judgment
shall not have been discharged; or
(h) (i) With respect to any Plan, a final determination is made that
a prohibited transaction within the meaning of Section 4975 of the Code or
Section 406 of ERISA occurred which results in direct or indirect liability
of the Borrower or any of its Material Subsidiaries, (ii) with respect to
any Title IV Plan, the filing of a notice to voluntarily terminate any such
plan in a distress termination, (iii) with respect to any Multiemployer
Plan, the Borrower, any of its Material Subsidiaries or any of its or their
ERISA Affiliates shall incur any Withdrawal Liability, or (iv) with respect
to any Qualified Plan, the Borrower, any of its Material Subsidiaries or
any of its or their ERISA Affiliates shall incur an accumulated funding
deficiency or request a funding waiver from the IRS; provided, however,
-------- -------
that the events listed in clauses (i)-(iv) hereof shall constitute Events
of Default only if the liability, deficiency or waiver request of the
Borrower, any of its Material Subsidiaries or any of its or their ERISA
Affiliates, as finally determined, exceeds $25,000,000 in any case set
forth in clauses (i)-(iv) above, or exceeds $25,000,000 in the aggregate
for all such cases; and, provided further, however, that with respect to
-------- ------- -------
the events listed in clauses (i), (iii) and (iv) hereof there shall be no
Event of Default if the liability of the Borrower, the relevant Material
Subsidiary or the relevant ERISA Affiliate is satisfied in full or in
accordance with the due dates therefor; or
(i) (i) NAI shall fail to own of record and beneficially not less
than 51% of the outstanding stock having ordinary voting power to elect a
majority of the board of directors of the Borrower and such failure of NAI
shall remain unremedied for fifteen days after the
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earlier of the date on which (A) telephonic or telegraphic notice thereof
shall have been given to the Administrative Agent by the Borrower pursuant
to Section 9.9(e), or (B) written notice thereof shall have been given to
the Borrower by the Administrative Agent or any Bank; or
(j) This Agreement or any other Loan Document shall cease to be valid
or enforceable for any reason in any material respect;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Banks, by notice to the Borrower,
declare the obligation of each Bank to make Loans to be terminated, whereupon
the same shall forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Majority Banks, by notice to the Borrower, declare all
amounts due under this Agreement and all interest thereon to be forthwith due
and payable, whereupon all amounts due under this Agreement and all such
interest and all such amounts shall become and be forthwith due and payable;
provided, however, that upon an actual or deemed entry of an order for relief
- - -------- -------
with respect to the Borrower or any of its Material Subsidiaries under the
federal Bankruptcy Code, (A) the obligation of each Bank to make Loans shall
automatically be terminated and (B) all amounts due under this Agreement and all
such interest and all such amounts shall automatically and without further
notice become and be due and payable. In addition to the remedies set forth
above, the Administrative Agent may exercise any other remedies provided for by
this Agreement in accordance with the terms hereof or any other remedies
provided by applicable law.
ARTICLE XII
THE MANAGING AGENTS AND THE FACILITY AGENTS
12.1. Authorization and Action. Each Bank hereby appoints and
------------------------
authorizes each Facility Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to such Facility
Agent by the terms hereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement, no Facility Agent shall be required to exercise any discretion or
take any action, but each shall be required to act or to refrain from acting
(and shall be fully protected in so acting or refraining from acting) upon the
instructions of the Majority Banks (or when expressly required hereunder, all
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the Banks), and such instructions shall be binding upon all Banks; provided,
--------
however, that no Facility Agent shall be required to take any action that
- - -------
exposes such Facility Agent to personal liability or that is contrary to this
Agreement or applicable law. Each Facility Agent agrees to give to each Bank
prompt notice of each notice given to it by the Borrower pursuant to the terms
of this Agreement.
12.2. Managing Agents' and Facility Agents' Reliance, Etc. Neither
----------------------------------------------------
the Managing Agents, the Facility Agents, their Affiliates nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by any of them under or in connection with
this Agreement, except for its own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, (i) any Managing Agent or
Facility Agent may consult with legal counsel (including counsel to the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts;
(ii) neither the Managing Agents nor the Facility Agents make any warranty or
representation to any Bank and none of them shall be responsible to any Bank for
any statements, warranties or representations made in or in connection with this
Agreement; (iii) neither the Managing Agents nor the Facility Agents shall have
any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of this Agreement on the part of the
Borrower or to inspect the Properties (including the books and records) of the
Borrower; (iv) neither the Managing Agents nor the Facility Agents shall be
responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; and (v) neither the Managing
Agents nor the Facility Agents shall incur liability under or in respect of this
Agreement by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telegram, cable or telex) believed by it to be genuine
and signed or sent by the proper party or parties. Neither the Agents nor the
Co-Agents shall, in their respective capacities as such, have any duties under
this Agreement other than those that they have in their capacities as Banks.
12.3. The Bank of New York, Citibank, N.A., Morgan Guaranty Trust
-----------------------------------------------------------
Company of New York, Bank of America NT&SA and Their Affiliates. With respect
- - ---------------------------------------------------------------
to the Commitments of The Bank of New York, Citibank, N.A., Morgan Guaranty
Trust Company of New York and Bank of America NT&SA,
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respectively, and the Loans made by each of them, each of The Bank of New York,
Citibank, N.A., Morgan Guaranty Trust Company of New York and Bank of America
NT&SA shall have the same rights and powers under this Agreement as any other
Bank and may exercise the same as though it were not a Managing Agent or
Facility Agent, as the case may be; and the term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include each of The Bank of New York, Citibank,
N.A., Morgan Guaranty Trust Company of New York and Bank of America NT&SA in
their individual capacities. Each of The Bank of New York, Citibank, N.A.,
Morgan Guaranty Trust Company of New York and Bank of America NT&SA and their
Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, the Borrower,
any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if The Bank of
New York, Citibank, N.A., Morgan Guaranty Trust Company of New York or Bank of
America NT&SA, as the case may be, were not a Managing Agent or Facility Agent,
as the case may be, and without any duty to account therefor to the Banks.
12.4. Bank Credit Decision. Each Bank acknowledges that it has,
--------------------
independently and without reliance upon the Managing Agents, the Facility
Agents, the Arrangers, the Agents, the Co-Agents or any other Bank, and based on
the financial statements referred to in Article VII and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it
will, independently and without reliance upon the Managing Agents, the Facility
Agents, the Arrangers, the Agents, the Co-Agents or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement.
12.5. Determinations Under Sections 6.1, 6.2 and 6.3. For purposes
----------------------------------------------
of determining compliance with the conditions specified in Sections 6.1, 6.2 and
6.3, each Bank shall be deemed to have consented to, approved or accepted, or to
be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Banks unless an
officer of the Administrative Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Bank prior
to the applicable Borrowing specifying its objection thereto (unless such
objection shall have been withdrawn by notice to the Administrative Agent to
that effect or such Bank shall have made available to the
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Administrative Agent such Bank's ratable portion of such Borrowing).
12.6. Indemnification. Each Bank agrees to indemnify the Managing
---------------
Agents, the Facility Agents, the Arrangers and their respective Affiliates, and
their respective directors, officers, employees, agents and advisors (to the
extent not reimbursed by the Borrower), ratably according to such Bank's Ratable
Portion of the Commitments, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements (including, without limitation, fees and disbursements
of legal counsel) of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against, any such Person in any way relating to or
arising out of this Agreement or any action taken or omitted by any such Person
under this Agreement; provided, however, that no Bank shall be liable for any
-------- -------
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from any such
Person's gross negligence or willful misconduct or from any violation or alleged
violation by any such Person or any other Bank of any law, rule or regulation or
any guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law) or, with respect to any Managing Agent
or Facility Agent, any conflict or alleged conflict between its rights and
duties in its capacity as such or as a Bank under this Agreement and any other
rights or duties it may have in any other capacity in which it may act in
connection with the consummation of the transactions contemplated by this
Agreement, whether or not such Bank is a party to such transactions. Without
limitation of the foregoing, each Bank agrees to reimburse any such Person
promptly upon demand for its ratable share of any out-of-pocket expenses
(including fees and disbursements of one counsel) incurred by such Person in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that such Person is not
reimbursed for such expenses by the Borrower.
12.7. Successor Facility Agents. Any Facility Agent may resign at
-------------------------
any time by giving written notice thereof to the Banks and the Borrower and may
be removed at any time with or without cause by the Majority Banks. Upon any
such resignation or removal, the Majority Banks shall have the right to appoint
a successor to such Facility Agent. If no successor to such Facility Agent
shall have
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been so appointed by the Majority Banks, and shall have accepted such
appointment, within 30 days after retiring Facility Agent's giving of notice of
resignation or the Majority Banks' removal of such retiring Facility Agent, then
such retiring Facility Agent on behalf of the Banks, shall appoint a successor
Facility Agent (which successor Facility Agent shall be a Bank or another
commercial bank organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$50,000,000). Upon the acceptance of any appointment as a Facility Agent
hereunder by any successor Facility Agent, such successor Facility Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Facility Agent, and such retiring Facility Agent
shall be discharged from its duties and obligations under this Agreement. After
any retiring Facility Agent's resignation or removal hereunder, the provisions
of this Article XII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Facility Agent.
ARTICLE XIII
MISCELLANEOUS
13.1. Amendments, Etc. No amendment or waiver of any provision of
----------------
this Agreement, nor consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Majority Banks, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
--------
however, that no amendment, waiver or consent shall, unless in writing signed by
- - -------
all the Banks and consented to by all of the Banks as defined under the
Subsidiary Facility, do any of the following: (a) waive any of the conditions
specified in Section 6.1, 6.2 or 6.3; (b) increase the Commitments of the Banks
or subject the Banks to any additional obligations; (c) change the principal of,
or decrease the interest on, any amounts payable hereunder or reduce the amount
of any Commitment Fee payable to the Banks hereunder; (d) postpone any date
fixed for any scheduled payment of any Commitment Fee, or scheduled payment of
principal of, or interest on, any amounts, payable hereunder; (e) change the
definition of Majority Banks; or (f) amend this Section 13.1; and provided
--------
further, however, that no amendment, waiver or consent shall, unless in writing
- - ------- -------
and signed by the Administrative Agent in addition to the Persons required above
to take such action, affect the rights or duties of the Administrative Agent
under this Agreement.
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13.2. Notices, Etc. Except as otherwise set forth herein, all
-------------
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopy or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered by hand, if to the
Borrower, at its address at 1515 Broadway, New York, New York 10036, Attention:
Treasurer; if to any Bank, at its Domestic Lending Office specified opposite its
name on Schedule I; and if to the Administrative Agent, at its address at
399 Park Avenue, 4th Floor, Zone 6, New York, New York 10043, Attention: David
Clark; or, as to the Borrower, any Bank or the Administrative Agent, at such
other address as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, cabled or delivered, be effective when
deposited in the mails, delivered to the telegraph company, confirmed by telex
answerback, telecopied with confirmation of receipt, delivered to the cable
company or delivered by hand to the addressee or its agent, respectively, except
that notices and communications to the Administrative Agent pursuant to
Article II, III, IV or XII shall not be effective until received by the
Administrative Agent.
13.3. No Waiver; Remedies. No failure on the part of any Bank, the
-------------------
Managing Agents or any Facility Agent to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
13.4. Costs; Expenses; Indemnities. (a) The Borrower agrees to pay
----------------------------
on demand all costs and expenses in connection with the preparation, execution,
delivery, administration, modification and amendment of this Agreement, the
other Loan Documents and the other documents to be delivered hereunder or
thereunder, including, without limitation, the specified reasonable fees and
out-of-pocket expenses of one counsel to the Managing Agents and the Facility
Agents and the Arrangers with respect thereto and with respect to advising the
Managing Agents, the Facility Agents and the Arrangers as to their rights and
responsibilities under this Agreement, and all costs and expenses of the
Managing Agents, the Facility Agents and the Banks (including, without
limitation, reasonable counsel fees and expenses) in connection with the
enforcement
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(whether through negotiations, legal proceedings or otherwise) of this
Agreement, the other Loan Documents and the other documents to be delivered
hereunder and thereunder.
(b) The Borrower agrees to defend, indemnify and hold harmless each
of the Managing Agents, the Facility Agents, the Arrangers and the Banks and
their respective affiliates and their respective directors, officers, attorneys,
agents, employees, successors and assigns (each, an "Indemnified Person") from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, claims, judgments, suits, costs, expenses and disbursements of any kind
or nature whatsoever (including, without limitation, fees and disbursements of
counsel of the Managing Agents, the Facility Agents, the Arrangers or the Banks)
which may be incurred by or asserted or awarded against any Indemnified Person,
in each case arising in any manner of or in connection with or by reason of the
Merger, the Merger Agreement, the Tender Offer, this Agreement, the other Loan
Documents, the Commitments or any undertakings in connection therewith, or the
proposed or actual application of the proceeds of the Loans (all of the
foregoing collectively, the "Indemnified Liabilities") and will reimburse each
Indemnified Person on a current basis for all expenses (including counsel fees
as they are incurred by such party) in connection with investigating, preparing
or defending any such action, claim or suit, whether or not in connection with
pending or threatened litigation irrespective of whether such Indemnified Person
is designated a party thereto; provided that the Borrower shall not have any
--------
liability hereunder to any Indemnified Person with respect to Indemnified
Liabilities which are determined by a final and nonappealable judgment of a
court of competent jurisdiction to have arisen primarily from the gross
negligence or willful misconduct of such Indemnified Person; and provided
--------
further, that if the Borrower has determined in good faith that such Indemnified
- - -------
Liabilities were primarily the result of such Indemnified Person's gross
negligence or willful misconduct, it shall not be obligated to pay such
Indemnified Liabilities until a court of competent jurisdiction has determined
whether such Indemnified Person acted with gross negligence or willful
misconduct. If for any reason the foregoing indemnification is unavailable to
an Indemnified Person or insufficient to hold an Indemnified Person harmless,
then the Borrower shall contribute to the amount paid or payable by such
Indemnified Person as a result of any Indemnified Liability in such proportion
as is appropriate to reflect not only the relative benefits received by the
Borrower and each Managing Agent, each Facility Agent, each Arranger and each
Bank, but
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also the relative fault of the Borrower and each Managing Agent, each Facility
Agent, each Arranger and each Bank, as well as any other relevant equitable
considerations. The foregoing indemnity shall be in addition to any rights that
any Indemnified Person may have at common law or otherwise, including, but not
limited to, any right to contribution.
(c) If any Bank receives any payment of principal of, or is subject
to a conversion of, any Eurodollar Rate Loan other than on the last day of an
Interest Period relating to such Loan, as a result of any payment or conversion
made by the Borrower or acceleration of the maturity of the amounts due under
this Agreement pursuant to Section 11.1 or for any other reason, the Borrower
shall, upon demand by such Bank (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Bank any amounts required to compensate such Bank for any additional losses,
costs or expenses which it may reasonably incur as a result of such payment or
conversion, including, without limitation, any loss (excluding loss of the
margin payable in accordance with Section 5.2 on the amount of principal so
paid, or any loss), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Bank to fund or
maintain such Loan. The foregoing obligations of the Borrower contained in
paragraphs (a), (b) and (c) of this Section 13.4, and the obligations of the
Borrower contained in Sections 5.5(b) and 5.7, shall survive the payment of the
Loans.
13.5. Right of Set-Off. Upon (i) the occurrence and during the
----------------
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 11.1 to authorize the
Administrative Agent to declare all amounts under this Agreement due and payable
pursuant to the provisions of Section 11.1 or the automatic acceleration of such
amounts pursuant to the proviso to that Section, each Bank is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Bank to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement irrespective of whether or not such Bank shall have made any demand
under this Agreement and although such obligations may be unmatured. Each Bank
agrees promptly to notify the Borrower after any such set-off and application
made by such Bank; provided, however, that the failure to give such notice shall
-------- -------
not affect the validity of such set-off and
-73-
application. The rights of each Bank under this Section 13.5 are in addition to
any other rights and remedies (including, without limitation, any other rights
of set-off) which such Bank may have.
13.6. Binding Effect. This Agreement shall become effective when it
--------------
shall have been executed by the Borrower, each of the Managing Agents, each of
the Facility Agents and each of the Arrangers and when the Managing Agents shall
have been notified by each of the Banks that such Bank has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, each
of the Managing Agents, each of the Facility Agents, each of the Arrangers and
each of the Banks and their respective successors and assigns, except that
(i) the Borrower shall have no right to assign its rights hereunder or any
interest herein without the prior written consent of the Banks and (ii) no Bank
may sell, transfer, assign, pledge or grant participations in any of its Loans
or any of its rights or obligations hereunder except in accordance with Section
13.7 or as expressly required hereunder.
13.7. Assignments and Participations; Additional Banks. (a) Any
------------------------------------------------
Bank may, at any time, by notice substantially in the form of Exhibit F hereto
(each, a "Notice of Assignment and Acceptance") delivered to the Administrative
Agent for its acceptance and recording, together with a recording fee in the
amount of $3,000, assign all or any part of its rights and obligations and
delegate its duties under this Agreement (A) to any other Bank or any affiliate
of any Bank which actually controls, is controlled by, or is under common
control with such Bank or to any Federal Reserve Bank (in either case without
limitation as to amount), or (B) with the prior consent of the Borrower (such
consent not to be unreasonably withheld), to any other Person (but if in part,
in a minimum amount of $25,000,000 or, if less, the balance of such Bank's
Short-Term Loan Commitment, the Revolving Loan Commitment and the Term Loan
Commitment); provided, however, that each assigning Bank must assign an
-------- -------
identical percentage of a Loan and its related Commitment and, in the case of
any assignment of a Term Loan and the related Commitment, a uniform, and not a
varying, percentage of each of its Term Loans and Term Loan Commitment and
Subsidiary Loans and Subsidiary Loan Commitments under the Subsidiary Facility;
provided further, however, that no Bank may make any such assignment or
- - -------- ------- -------
delegation of, or sell or grant (as provided in paragraph (b) below) any
participation in, any of its rights or duties under this Agreement until the one
hundredth day after the Initial Funding Date (or such other date as may be
determined in accordance with the Syndication
-74-
Letter, dated as of June 8, 1994), except (i) through a coordinated pooled
syndication organized by the Arrangers and (ii) to any affiliate of such Bank
which actually controls, is controlled by, or is under common control with such
Bank or to any Federal Reserve Bank.
(b) Any Bank may at any time sell or grant participations in its
Commitment, or the obligations owing to or from any Person existing under this
Agreement; provided, however, that (i) as between such Bank and the Borrower,
-------- -------
the existence of such participations shall not give rise to any direct rights or
obligations between the Borrower and the participants; (ii) such Bank shall
remain solely responsible to the other parties hereto for the performance of
such obligations; (iii) the Borrower, the Managing Agents, the Facility Agents
and the other Banks shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement; and
(iv) no such sale or grant of a participation shall, without the consent of the
Borrower, require the Borrower to file a registration statement with the
Securities and Exchange Commission or apply to qualify the Commitments or the
Loans under the securities laws of any state.
(c) If an assignment is made by any Bank in accordance with the
provisions of paragraph (a) above, upon acceptance and recording by the
Administrative Agent, and approval by the Borrower, where applicable, of each
Notice of Assignment and Acceptance, (i) the assignee thereunder shall become a
party to this Agreement and the Borrower shall release and discharge the
assigning Bank from its duties, liabilities or obligations under this Agreement
to the extent the same are so assigned and delegated by such Bank, provided that
--------
no such consent, release or discharge shall have effect until the Borrower shall
have received a fully executed copy of the Notice of Assignment and Acceptance
relating to such assignment and (ii) Schedule II shall be deemed amended to give
effect to such assignment. The Borrower agrees that each such disposition will
give rise to a direct obligation of the Borrower to any such assignee.
(d) The Borrower authorizes each Bank to disclose to any prospective
assignee or participant and any assignee or participant any and all financial
information in such Bank's possession concerning the Borrower and this
Agreement; provided, however, that, prior to any such disclosure, the assignee
-------- -------
or participant or proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information relating to the Borrower
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received by it from such Bank in accordance with Section 13.10.
(e) Any Bank which sells or grants participations in any Loans or its
Commitment may not grant to the participants the right to vote other than on
amendments, consents, waivers, modifications or other actions which change the
principal amount of, postpone the scheduled maturity of, or decrease the
interest rates applicable to, any Loans under, or increase the amount of, such
Commitment (except with respect to participating Affiliates actually controlled
by, controlling or under common control with, such Bank); provided, however,
-------- -------
that as between the Bank and the Borrower, only the Bank shall be entitled to
cast such votes.
(f) No participant in any Bank's rights or obligations shall be
entitled to receive any greater payment under Section 5.5 or 5.7 than such Bank
would have been entitled to receive with respect to the rights participated, and
no participation shall be sold or granted to any Person as to which the events
specified in Section 5.6 have occurred on or before the date of participation.
(g) The Administrative Agent shall maintain at its address referred
to in Section 13.2 a copy of each Notice of Assignment and Acceptance received
by it and a register, containing the terms of each Notice of Assignment and
Acceptance, for the recordation of the names and addresses of each Bank and the
Commitment of, and principal amount of the Loans owing to, each Bank from time
to time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the Banks,
the Facility Agents and the Managing Agents may treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes of this Agreement.
The Register shall be available for inspection by the Borrower, any Bank, any
Facility Agent or any Managing Agent at any reasonable time and from time to
time upon reasonable prior notice.
13.8. GOVERNING LAW; SEVERABILITY. THIS AGREEMENT AND THE RIGHTS AND
---------------------------
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. WHEREVER POSSIBLE, EACH
PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED IN SUCH MANNER AS TO BE
EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS AGREEMENT
SHALL BE PROHIBITED BY OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE
INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT
INVALIDATING THE
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REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS AGREEMENT.
13.9. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
------------------------------------------------
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY DOCUMENT RELATED HERETO MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVE ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH ANY OF THEM MAY
--------------------
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH
RESPECTIVE JURISDICTIONS.
(b) The Borrower irrevocably consents to the service of process of
any of the aforementioned courts in any such action or proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, to the
Borrower at its address specified for notices in or pursuant to Section 13.2
hereof, such service to become effective 30 days after such mailing.
(c) Nothing contained in this Section 13.9 shall affect the right of
any Managing Agent, any Facility Agent or any Bank to serve process in any other
manner permitted by law or commence legal proceedings or otherwise proceed
against the Borrower in any other jurisdiction.
(d) Each of the parties hereto waives any right it may have to trial
by jury in any proceeding arising out of this Agreement.
13.10. Confidentiality. Each Bank, each Managing Agent and each
---------------
Facility Agent agrees to keep confidential information obtained by it pursuant
hereto (or otherwise obtained from the Borrower in connection with this
Agreement) confidential in accordance with such Person's customary practices and
agrees that it will only use such information in connection with the
transactions contemplated by this Agreement and not disclose any of such
information other than (i) to such Person's employees, counsel, representatives
and agents who are or are expected to be involved in the evaluation of such
information in connection with the transactions contemplated by this Agreement
and who in each case agree to be bound by the provisions of this
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sentence, (ii) to the extent that disclosure by such Person is required, or to
the extent that such Person has been advised by counsel that disclosure is
required, in order to comply with any law, regulation or judicial order or
requested or required by bank regulators or auditors or other Governmental
Authority, (iii) to assignees or participants of the Loans or Commitments or
potential assignees or participants of the Loans or Commitments who in each case
agree in writing to be bound by the provisions of this sentence or (iv) to the
extent that such information has otherwise been disclosed or made public other
than by such Person, or such Person's employees, counsel, representatives or
agents, in violation of this Section 13.10.
13.11. Section Titles. The Section titles contained in this
--------------
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
13.12. Execution in Counterparts. This Agreement may be executed in
-------------------------
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed as of the date first above written.
VIACOM INC., as Borrower
By:
----------------------------------------------------
Name:
Title:
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Managing Agents
---------------
THE BANK OF NEW YORK, as Managing Agent, the
Documentation Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
CITIBANK, N.A., as Managing Agent, the Administrative
Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Managing
Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
BANK OF AMERICA NT&SA, as Managing Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
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Agents
------
BANK OF MONTREAL, as Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, as Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
THE BANK OF TOKYO TRUST COMPANY, as Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
BARCLAYS BANK PLC, as Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
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CANADIAN IMPERIAL BANK OF COMMERCE, as Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as
Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
CREDIT LYONNAIS CAYMAN ISLAND BRANCH, as Agent and a
Bank
By:
----------------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON, as Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED, as Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
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THE INDUSTRIAL BANK OF JAPAN, LTD., as Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
LTCB TRUST COMPANY, as Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
MELLON BANK, N.A., as Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
NATIONSBANK OF TEXAS N.A., as Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
SOCIETE GENERALE, as Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
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THE TORONTO-DOMINION BANK, as Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
UNION BANK, as Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
Co-Agents
---------
CREDIT SUISSE, as Co-Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
By:
----------------------------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK LTD., NEW YORK BRANCH, as
Co-Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
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THE MITSUBISHI BANK, LIMITED, as Co-Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
THE MITSUBISHI TRUST & BANKING CORPORATION, as Co-Agent
and a Bank
By:
----------------------------------------------------
Name:
Title:
ROYAL BANK OF CANADA, as Co-Agent and a Bank
By:
----------------------------------------------------
Name:
Title:
THE SANWA BANK, LTD., as Co-Agent and
a Bank
By:
----------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED, NEW YORK
BRANCH, as Co-Agent and a Bank
By:
----------------------------------
Name:
Title:
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UNION BANK OF SWITZERLAND, as Co-
Agent and a Bank
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
Syndication Agent
-----------------
JP MORGAN SECURITIES INC., as the
Syndication Agent
By:
----------------------------------
Name:
Title:
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