Exhibit 4.2
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$311,000,000
CREDIT AGREEMENT,
dated as of
July 1, 1994,
among
VIACOM CABLEVISION OF DAYTON INC.,
WNYT INC.,
WMZQ INC.,
and
WVIT INC.,
each, as an MSub
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and
VIACOM INTERNATIONAL INC.,
collectively, as Subsidiary Borrowers,
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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
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1.2. Computation of Time Periods . . . . . . . . 15
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1.3. Accounting Terms . . . . . . . . . . . . . . 16
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ARTICLE II
AMOUNT AND TERMS OF THE SUBSIDIARY LOANS
2.1. The Subsidiary Loans . . . . . . . . . . . . 16
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2.2. Making the Subsidiary Loans . . . . . . . . 17
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2.3. Repayment of the Subsidiary Loans . . . . . 18
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2.4. Optional Prepayments of the Subsidiary
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Loans . . . . . . . . . . . . . . . . . . . 19
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2.5. Mandatory Prepayments of the Subsidiary
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Loans . . . . . . . . . . . . . . . . . . . 19
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ARTICLE III
CONVERSION, INTEREST, PAYMENTS, FEES, ETC.
3.1. Conversion/Continuation Option . . . . . . . 19
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3.2. Interest . . . . . . . . . . . . . . . . . . 20
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3.3. Interest Rate Determination and Protection . 21
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3.4. Fees . . . . . . . . . . . . . . . . . . . . 22
----
3.5. Increased Costs . . . . . . . . . . . . . . 23
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3.6. Illegality . . . . . . . . . . . . . . . . . 25
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3.7. Capital Adequacy . . . . . . . . . . . . . . 26
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3.8. Payments and Computations . . . . . . . . . 27
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3.9. Sharing of Payments, Etc. . . . . . . . . . 28
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3.10. Replacement Banks . . . . . . . . . . . . . 29
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ARTICLE IV
CONDITIONS OF LENDING
4.1. Conditions Precedent to the Making of the
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Subsidiary Loans . . . . . . . . . . . . . 29
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4.2. Additional Conditions Precedent to the
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Making of the Subsidiary Loans . . . . . . 30
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1. Representations and Warranties in Parent
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Facility . . . . . . . . . . . . . . . . . 31
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ARTICLE VI
AFFIRMATIVE COVENANTS
6.1. Compliance with Laws, Etc. . . . . . . . . . 32
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6.2. Payment of Taxes, Etc. . . . . . . . . . . . 32
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6.3. Maintenance of Insurance . . . . . . . . . . 32
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6.4. Preservation of Corporate Existence, Etc. . 32
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6.5. Books and Access . . . . . . . . . . . . . . 33
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6.6. Maintenance of Properties, Etc. . . . . . . 33
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6.7. Application of Proceeds . . . . . . . . . . 33
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6.8. Reporting Requirements . . . . . . . . . . . 33
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ARTICLE VII
NEGATIVE COVENANTS
7.1. Liens, Etc. . . . . . . . . . . . . . . . . 34
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7.2. Transactions with Affiliates . . . . . . . . 34
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7.3. Margin Stock . . . . . . . . . . . . . . . . 34
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7.4. Subsidiary Indebtedness . . . . . . . . . . 34
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7.5. Other Restrictions on Indebtedness . . . . . 35
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ARTICLE VIII
EVENTS OF DEFAULT
8.1. Events of Default . . . . . . . . . . . . . 35
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ARTICLE IX
THE MANAGING AGENTS AND THE FACILITY AGENTS
9.1. Authorization and Action . . . . . . . . . . 38
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9.2. Managing Agents' and Facility Agents'
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Reliance, Etc. . . . . . . . . . . . . . . 39
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9.3. The Bank of New York, Citibank, N.A., Morgan
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Guaranty Trust Company of New York, Bank of
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America NT&SA and Their Affiliates . . . . 40
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9.4. Bank Credit Decision . . . . . . . . . . . . 40
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9.5. Determinations Under Sections 4.1, and 4.2 . 40
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9.6. Indemnification . . . . . . . . . . . . . . 41
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9.7. Successor Facility Agents . . . . . . . . . 42
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ARTICLE X
MISCELLANEOUS
10.1. Amendments, Etc. . . . . . . . . . . . . . 42
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10.2. Notices, Etc. . . . . . . . . . . . . . . . 43
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10.3. No Waiver; Remedies . . . . . . . . . . . . 43
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10.4. Costs; Expenses; Indemnities . . . . . . . 44
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10.5. Right of Set-Off . . . . . . . . . . . . . 45
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10.6. Binding Effect . . . . . . . . . . . . . . 46
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10.7. Assignments and Participations; Additional
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Banks . . . . . . . . . . . . . . . . . . 46
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10.8. Majority Banks are Third Party
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Beneficiaries . . . . . . . . . . . . . . 49
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10.9. GOVERNING LAW; SEVERABILITY . . . . . . . . 49
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10.10. SUBMISSION TO JURISDICTION; WAIVER OF JURY
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TRIAL . . . . . . . . . . . . . . . . . . 49
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10.11. Confidentiality . . . . . . . . . . . . . . 50
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10.12. Section Titles . . . . . . . . . . . . . . 51
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10.13. Execution in Counterparts . . . . . . . . . 51
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Schedules
Schedule I - Lending Offices
Schedule II - Subsidiary Commitments
Schedule 1.1 - Guarantees in Effect on the Date of
this Agreement
Exhibits
Exhibit A - Form of Notice of Borrowing
Exhibit B - Form of Paramount Affiliate
Guarantee
Exhibit C - Form of Parent 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 Assignment and Acceptance
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CREDIT AGREEMENT, dated as of July 1, 1994, among VIACOM
CABLEVISION OF DAYTON INC., WNYT INC., WMZQ INC., and WVIT INC., (each an
"MSub"), and VIACOM INTERNATIONAL INC. each a Delaware corporation
(collectively, "Subsidiary Borrowers"), 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:
- - - - - - - - - -
WHEREAS, the Subsidiary Borrowers are direct and indirect
Subsidiaries of Viacom Inc., a Delaware corporation; and
WHEREAS, simultaneously herewith, the Banks, the Managing Agents,
the Facility Agents (as hereinafter defined), the Agents and the Co-Agents
are entering into the Parent Facility (as hereinafter defined), pursuant to
which the Banks will provide senior debt financing to Viacom; and
WHEREAS, each of the Subsidiary Borrowers has requested that the
Banks provide senior debt financing for, among other things, the refinancing
of certain existing indebtedness of such Subsidiary Borrower, and the Banks
are willing to make funds available for such purposes, but only upon the
terms and subject to the conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the covenants
and agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms. As used in this Agreement, the following
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terms have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Administrative Agent" means Citibank, N.A., in its capacity as the
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Administrative Agent, or any successor in such capacity.
"Affiliate" means, as to any Person, any Subsidiary of such Person
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and any other Person which, directly or indirectly, controls, is controlled
by or is under common control with such Person. For the purposes of this
definition, "control" means the possession of the power to direct or cause
the direction of management and policies of any Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agents" means each of the Banks identified as Agents on the
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signature pages hereof.
"Agreement" means this Credit Agreement, as modified, amended or
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supplemented from time to time.
"Applicable Eurodollar Rate Margin" shall mean on any date the
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percentage set forth below opposite the Credit Rating applicable to Viacom 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 Funding
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Date on which Viacom delivers a certificate (which may be the certificate
described in Section 9.8(e) of the Parent Facility) demonstrating that the
Viacom Total Leverage Ratio (taking into account Viacom's EBIDT (as defined
in the Parent Facility) through 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 the Parent Facility) 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 change in the
Credit Rating of Viacom shall be effective to adjust the applicable
Eurodollar Rate Margin as of the date such change is announced by the
applicable Rating Agency.
"Applicable Lending Office" means, with respect to each Bank, its
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Domestic Lending Office in the case of a Base
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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 10.7.
"Base Rate" means, for any day, a fluctuating interest rate per
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annum as shall be in effect for such day, which rate per annum shall be equal
at all times to the higher of
(a) the rate of interest announced publicly by the Administrative
Agent in New York, New York as the Administrative Agent's base rate in
effect for such day; or
(b) the Federal Funds Rate for such day plus 1/2 of one percent
per annum;
provided, however, that if the higher of the Credit Ratings assigned by S&P
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and Moody's to Viacom shall be BB-/Ba3 or lower, (or, if such Credit Ratings
differ by more than one level, the rating that is one rating level
immediately above the lower of such ratings, shall be BB-/Ba3 or lower) then
the Base Rate shall be equal at all times to the sum of (x) the higher of the
foregoing rates plus (y) 1/2 of one percent per annum.
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"Base Rate Loan" means any Subsidiary Loan or portion thereof that
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bears interest with reference to the Base Rate.
"Business Day" means a day of the year on which banks are not
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required or authorized to close in New York City and, if the applicable
Business Day relates to a Eurodollar Rate Loan, a day on which dealings are
also carried on in Dollars in the London interbank market.
"Capitalized Lease" means, as applied to any Person, any lease of
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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.
"Co-Agents" means each of the Banks identified as Co-Agents on the
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signature pages hereof.
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"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 Viacom or
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Viacom International with a maturity at the time of issuance not exceeding
nine months, exclusive of days of grace, issued by Viacom or Viacom
International pursuant to a commercial paper program of either.
"Commitment Fee" has the meaning specified in Section 3.4(a).
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"Credit Rating" means the most recent rating of the long-term
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senior unsecured debt of Viacom 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
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giving of notice or both would become an Event of Default.
"Documentation Agent" means The Bank of New York, in its capacity
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as 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
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office of such Bank specified as its "Domestic Lending Office" opposite its
name on Schedule I or such other office of such Bank as such Bank may from
time to time specify to the Subsidiary Borrowers and the Administrative
Agent.
"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
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Pollution Control Act (33 U.S.C. Sec. 1251 et seq.), the Clean Air Act (42
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U.S.C. Sec. 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. Sec.
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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
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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
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Transfer Law of 1985 (Conn. Gen. Stat. Sec. 22a-134 et seq.) and the
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regulations promulgated pursuant thereto.
"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
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(or any successor legislation thereto) and the rules and regulations
promulgated thereunder, as amended from time to time.
"ERISA Affiliate" shall mean a corporation, partnership or other
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entity which is considered one employer with any Subsidiary Borrower under
Section 4001 of ERISA or Section 414 of the Code.
"Eurocurrency Liabilities" has the meaning specified in Regulation
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D.
"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 Subsidiary Borrowers and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period, the rate of
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interest per annum determined by the Administrative Agent to be the offered
rate per annum at which deposits in Dollars appears on the Telerate Page 3750
(or any successor page) as of 11:00 A.M. (London time), or in the event such
offered rate is not available from the Telerate Page, the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such average
is not such a multiple) of the rates offered by the principal office of each
of the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time), two Business Days before the
first day of such Interest Period for deposit in dollars in an amount
substantially equal to the aggregate Eurodollar Rate Loans to which such
Interest Period relates and for a period equal to such Interest Period.
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"Eurodollar Rate Loan" means any Subsidiary Loan or portion thereof
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that bears 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 8.1.
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"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 to the date hereof as amended from
time to time.
"Existing Viacom Credit Agreement" means the Credit Agreement,
--------------------------------
dated as of November 19, 1993, as amended, by and among Viacom, 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 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 any Subsidiary Borrower or any
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of its Subsidiaries, any radio, television or other license, Permit,
certificate of
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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
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rate per annum equal for such day to the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for such day on
such transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.
"Final Judgment" has the meaning specified in Section 8.1(g).
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"Fiscal Quarter" means any three month period ending March 31, June
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30, September 30 or December 31 of any Fiscal Year, or such other fiscal
quarter end date as may be determined by Viacom following the Merger.
"Fiscal Year" means each twelve-month period ending December 31, or
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such other fiscal year end date as may be determined by Viacom following the
Merger.
"Franchise" means a franchise, authorization or right by contract
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to construct, own, operate or otherwise exploit any cable television facility
operated by any Subsidiary Borrower or any of its Subsidiaries, granted by
any Governmental Authority.
"Funding Date" means the date on which the conditions set forth in
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Sections 4.1 and 4.2 are satisfied or waived and the Subsidiary Loans are
made hereunder.
"GAAP" means generally accepted accounting principles in the United
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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.
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"Governmental Authority" means any nation or government, any state
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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
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Paramount.
"Indebtedness" of any Person means at any date, without
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duplication, (i) all obligations of such Person for borrowed money
(including, without limitation, in the case of the Subsidiary Borrowers, the
obligations of the Subsidiary Borrowers for borrowed money under this
Agreement), (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person to pay the deferred purchase price of Property or services, except as
provided below, (iv) all obligations of such Person as lessee under
Capitalized Leases, (v) all Indebtedness of others secured by a Lien on any
Property of such Person, whether or not such Indebtedness is assumed by such
Person, (vi) all Indebtedness of others directly or indirectly guaranteed or
otherwise assumed by such Person, including any obligations of others
endorsed (otherwise than for collection or deposit in the ordinary course of
business) or discounted or sold with recourse by such Person, or in respect
of which such Person is otherwise directly or indirectly liable, including,
without limitation any Indebtedness in effect guaranteed by such Person
through any agreement (contingent or otherwise) to purchase, repurchase or
otherwise acquire such obligation or any security therefor, or to provide
funds for the payment or discharge of such obligation, or to maintain the
solvency or any balance sheet or other financial condition of the obligor of
such obligation, provided that Indebtedness of Viacom and its Subsidiaries
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(including the Subsidiary Borrowers) 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 Viacom
or any of its Subsidiaries (including the Subsidiary Borrowers) 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,
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however, that in each of the foregoing clauses (i) through (vii),
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Indebtedness
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shall not include obligations (other than under this Agreement or the Parent
Facility) specifically with respect to the production, distribution and
acquisition of motion pictures or other programming rights, talent or
publishing rights.
"Indemnified Liability" has the meaning specified in Section
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10.4(b).
"Indemnified Person" has the meaning specified in Section 10.4(b).
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"Interest Period" means, (a) in the case of Base Rate Loans, the
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period commencing on the date such Subsidiary Loans are made or on the date
of conversion of such Subsidiary Loans from Eurodollar Rate Loans and ending
on the last day of each Fiscal Quarter, and (b) in the case of Eurodollar
Rate Loans, (i) initially, the period commencing on the date such Subsidiary
Loans are made or on the date of conversion of such Subsidiary Loans or
portions thereof from Base Rate Loans and ending one, two, three or six
months thereafter, as selected by the applicable Subsidiary Borrower in its
Notice of Borrowing or Notice of Conversion or Continuation given to the
Administrative Agent pursuant to Section 2.2 or 3.1, as the case may be, and
(ii) thereafter, if such Subsidiary Loans are renewed, in whole or in part,
as Eurodollar Rate Loans pursuant to Section 3.1, the period commencing on
the last day of the immediately preceding Interest Period therefor and ending
one, two, three or six months thereafter, as selected by the applicable
Subsidiary Borrower in its Notice of Conversion or Continuation given to the
Administrative Agent pursuant to Section 3.1, subject, however, to the
following:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless the result of such extension for any
Eurodollar Rate Loan would be to extend such Interest Period into
another calendar month, in which event such Interest Period shall end on
the immediately preceding Business Day;
(ii) any Interest Period in respect of Eurodollar Rate Loans that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Business Day of a
calendar month;
(iii) no Interest Period may extend beyond the Termination Date;
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(iv) a Subsidiary Borrower may not select any Interest Period in
respect of Subsidiary Loans in an aggregate amount less than $5,000,000;
and
(v) there shall be outstanding at any one time no more than 5
Interest Periods in the aggregate.
"IRS" means the Internal Revenue Service, or any successor thereto.
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"Lien" means any mortgage, deed of trust, pledge, hypothecation,
----
assignment, deposit arrangement, encumbrance, lien (statutory or other),
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement.
"Loan Documents" means, collectively, this Agreement, the Parent
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Facility, the VII Guarantee, the Parent Guarantee, the Paramount Affiliate
Guarantee and the Paramount Parent Guarantee.
"Loan Parties" means each of Viacom, each Subsidiary Borrower and
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each Guarantor Subsidiary.
"Majority Banks" means, at any time, Banks having at least 51% of
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the aggregate amount of (x) the Subsidiary Commitments and (y) the
Commitments under (and as defined in) the Parent Facility, taken together and
voting as a single group; provided, however, that, for purposes of this
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definition, if the Subsidiary Commitment or Commitment of any Bank shall have
been terminated, the then aggregate unpaid principal amount of Subsidiary
Loans of such Bank hereunder and Loans of such Bank under (and as defined in)
the Parent Facility shall be deemed to be such Bank's Subsidiary Commitment
or Commitment, as the case may be.
"Managing Agents" means each of The Bank of New York, Citibank,
---------------
N.A., 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.
"Material Adverse Effect" means a material adverse effect on the
------------------------
business, financial condition, operations or Properties of Viacom and its
Subsidiaries taken as a whole.
-10-
"Material Credit Agreement Change" means a change that has
--------------------------------
materially adversely affected or would materially adversely affect the
legality, validity or enforceability of any payment obligation of Viacom,
Viacom International or Paramount or, for the purpose of Section 9.9 of the
Parent Facility 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 a wholly owned Subsidiary of Viacom
------
with and into Paramount, with Paramount surviving as a wholly owned
Subsidiary of Viacom.
"Merger Agreement" means the Amended and Restated Agreement and
----------------
Plan of Merger, dated as of February 4, 1994, between Paramount and Viacom,
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.
"Moody's" means Moody's Investors Service, Inc.
-------
"MSubs" shall mean each of Viacom Cablevision of Dayton, Inc., WNYT
-----
Inc., WMZQ Inc. and WVIT Inc., each a Delaware corporation and a direct
wholly owned Subsidiary of Viacom International.
"Multiemployer Plan" means a multiemployer plan, as defined in
------------------
Section 4001(a)(3) of ERISA, to which any Subsidiary Borrower, any of its
Subsidiaries or any ERISA Affiliate of such Subsidiary Borrower is making, is
obligated to make, has made or been obligated to make, contributions on
behalf of participants who are or were employed by any of them.
"NAI" means National Amusements, Inc., a Maryland corporation.
---
"Notice of Assignment and Acceptance" has the meaning specified in
-----------------------------------
Section 10.7(a).
"Notice of Borrowing" means a notice of a Subsidiary Borrower
-------------------
substantially in the form of Exhibit A hereto specifying therein (i) the date
of the proposed Subsidiary Borrowing to be made by such Subsidiary Borrower,
(ii) the aggregate amount of such proposed Subsidiary Borrowing, (iii) the
amount of such Subsidiary Borrowing, if
-11-
any, requested to be Eurodollar Rate Loans and (iv) the initial Interest
Period or Interest Periods for any such Eurodollar Rate Loans.
"Notice of Conversion or Continuation" has the meaning specified in
------------------------------------
Section 3.1.
"Paramount" means Paramount Communications Inc., a Delaware
---------
corporation.
"Paramount Affiliate Guarantee" means the guarantee by Paramount of
-----------------------------
the obligations of the Subsidiary Borrowers under this Agreement,
substantially in the form of Exhibit B hereto.
"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 Viacom pursuant to the Parent Facility substantially in
the form of Exhibit B to the Parent Facility.
"Parent Facility" means the Credit Agreement, dated as of the date
---------------
hereof, among Viacom, the banks parties thereto from time to time, The Bank
of New York, Citibank, N.A., Morgan Guaranty Trust Company of New York and
Bank of America NT&SA, as Managing Agents, The Bank of New York, as the
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.
"Parent Guarantee" means the guarantee by Viacom of the obligations
----------------
of the Subsidiary Borrowers pursuant to this Agreement substantially in the
form of Exhibit C hereto.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
----
successor thereto.
"Pension Plan" means an employee pension benefit plan, as defined
------------
in Section 3(2) of ERISA (other than a Multiemployer Plan), which is not an
individual account plan, as defined in Section 3(34) of ERISA, and which any
Subsidiary Borrower, any of its Subsidiaries or any ERISA Affiliate of such
Subsidiary Borrower now or in the future maintains, contributes to or has an
obligation to contribute to on behalf of participants who are or were
employed by any of them.
-12-
"Permit" means any permit, approval, authorization, license,
------
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.
"Person" means an individual, partnership, corporation (including a
------
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity, or Governmental Authority.
"Plan" shall mean an employee benefit plan as defined in Section
----
3(3) of ERISA which is maintained or contributed to by any Subsidiary
Borrower or an ERISA Affiliate of such Subsidiary Borrower.
"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 any Subsidiary Borrower, any of its
Subsidiaries or any ERISA Affiliate of such Subsidiary Borrower now or in the
future maintains, contributes to or has an obligation to contribute to on
behalf of participants who are or were employed by any of them.
"Ratable Portion" means, with respect to any Bank, the percentage
---------------
obtained by dividing the amount of such Bank's Subsidiary Commitment by the
aggregate amount of all the Subsidiary Commitments of all the Banks.
"Reference Banks" means The Bank of New York, Citibank, N.A.,
---------------
Morgan Guaranty Trust Company of New York and Bank of America NT&SA.
"Register" has the meaning specified in Section 10.7(g) hereof.
--------
"Regulation D" means Regulation D of the Board of Governors of the
------------
Federal Reserve System (or any successor thereto), as in effect from time to
time, or any successor thereto.
"Regulation U" means Regulation U of the Board of Governors of the
------------
Federal Reserve System (or any successor
-13-
thereto), as in effect from time to time, or any successor thereto.
"Requirements of Law" means all federal, state and local laws,
-------------------
rules, regulations, orders, decrees or other determinations of an arbitrator,
court or other Governmental Authority, including the requirements of ERISA
and Environmental Law.
"Responsible Officer" of any Person means any of the officers of
-------------------
such Person listed in the certificate delivered to the Managing Agents
pursuant to Section 4.1(c) or otherwise notified to the Administrative Agent
as being authorized to execute and deliver documents and certificates and
otherwise act on behalf of such Person in all matters (other than financial
matters) arising under this Agreement or any other Loan Document.
"S&P" means Standard & Poor's Ratings Group.
---
"Subsidiary" means, with respect to any Person, any corporation,
----------
partnership or other business entity of which more than 50% of the
outstanding Equity having ordinary voting power to elect a majority of the
board of directors of such entity (irrespective of whether, at the time,
Equity of any other class or classes of such entity shall have or might have
voting power by reason of the happening of any contingency) is, or of which
more than 50% of the interests in which are, at the time, directly or
indirectly, owned by such Person and/or one or more Subsidiaries of such
Person.
"Subsidiary Borrowers" has the meaning specified in the recitals
--------------------
hereof.
"Subsidiary Borrowing" means a borrowing by any Subsidiary Borrower
--------------------
consisting of Subsidiary Loans made to such Subsidiary Borrower on the same
day by the Banks ratably according to their respective Subsidiary Commitments
with respect to such Subsidiary Borrower.
"Subsidiary Commitment" has the meaning specified in Section
---------------------
2.1(a).
"Subsidiary Loan" means a loan made to a Subsidiary Borrower
---------------
pursuant to Section 2.1.
"Syndication Agent" means JP Morgan Securities Inc. in its capacity
-----------------
as the Syndication Agent, or any successor in such capacity.
-14-
"Tender Offer" means the acquisition by Viacom on March 11, 1994 of
------------
approximately 50.2% of the issued and outstanding shares of Paramount Common
Stock pursuant to Viacom's Offer to Purchase dated October 25, 1993, as
amended.
"Termination Date" means the earliest of (i) July 1, 2002, (ii) the
----------------
date of the earlier termination in whole of all of the Subsidiary Commitments
pursuant to the terms hereof, including pursuant to Section 8.1 and (iii) the
date on which the Parent Facility is terminated.
"Title IV Plan" means a Pension Plan, other than a Multiemployer
-------------
Plan, which is covered by Title IV of ERISA.
"Viacom" means Viacom Inc., a Delaware corporation, or any
------
successor thereto.
"Viacom International" means Viacom International Inc., a Delaware
--------------------
corporation.
"Viacom Total Leverage Ratio" means the Total Leverage Ratio as
---------------------------
defined in and calculated in accordance with the Parent Facility.
"VII Guarantee" means the guarantee by Viacom International of the
-------------
obligations of Viacom pursuant to the Parent Facility, substantially in the
form of Exhibit C to the Parent Facility.
"Withdrawal Liability" means, as to any Person, at any time, the
--------------------
aggregate amount of the liabilities, if any, of such Person pursuant to
Section 4201 of ERISA.
1.2. Computation of Time Periods. In this Agreement, in the
---------------------------
computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding" and the word "through" means "to and
including".
1.3. Accounting Terms. All accounting terms not specifically
----------------
defined herein shall be construed in accordance with GAAP.
ARTICLE II
AMOUNT AND TERMS OF THE SUBSIDIARY LOANS
2.1. The Subsidiary Loans. (a) The Subsidiary Loans. On the
-------------------- --------------------
terms and subject to the conditions contained
-15-
in this Agreement, each Bank severally agrees to make a Subsidiary Loan on
the Funding Date to each Subsidiary Borrower, which shall be severally liable
with respect to each such Subsidiary Loan made to it, in the amount set forth
opposite such Bank's name under such Subsidiary Borrower's column on
Schedule II hereto as such Bank's "Subsidiary Commitment" for such Subsidiary
Borrower (as adjusted from time to time by reason of assignments in
accordance with the provisions of Section 10.7, the aggregate of all such
commitments to the Subsidiary Borrowers being such Bank's "Subsidiary
Commitment").
(b) Evidence of Debt. (i) Each Bank shall maintain in accordance
----------------
with its usual practice an account or accounts evidencing the Indebtedness of
each Subsidiary Borrower to each Bank resulting from the Subsidiary Loans
made by such Bank to such Subsidiary Borrower, including the amounts of
principal and interest payable and paid to such Bank from time to time
hereunder.
(ii) The Register maintained by the Administrative Agent pursuant
to Section 10.7(g) shall include a "Subsidiary Loan control account" for each
Subsidiary Borrower and for each Bank, in which accounts shall be recorded
(A) the amount of each Bank's Subsidiary Loans to such Subsidiary Borrower,
(B) the name of each Subsidiary Borrower together with the Subsidiary Loans
of each Bank made to such Subsidiary Borrower, (C) the date on which the
Subsidiary Loans were made, (D) the amount of any principal or interest due
and payable or to become due and payable from each Subsidiary Borrower to
each Bank with respect to such Subsidiary Borrower's Subsidiary Loans
hereunder and (E) the amount of any sum received by the Administrative Agent
from any Subsidiary Borrower with respect to Subsidiary Loans made to it
hereunder and each Bank's Ratable Portion thereof.
(iii) The entries made in the Register shall be conclusive and
binding for all purposes, absent manifest error.
2.2. Making the Subsidiary Loans. (a) The Subsidiary Borrowing
---------------------------
of each Subsidiary Borrower shall be made upon receipt of a Notice of
Borrowing, given by such Subsidiary Borrower to the Administrative Agent not
later than 9:30 A.M. (New York City time) on the Funding Date, in the event
such Subsidiary Borrowing is to be comprised of Base Rate Loans, and (ii)
11:00 A.M. (New York City time) on the third Business Day prior to the
Initial Funding Date, in the event such Subsidiary Borrowing is to be
comprised of Eurodollar Rate Loans.
-16-
(b) The Administrative Agent shall give to each Bank prompt notice
(but in any event on the same day) of its receipt of a Notice of Borrowing
and, if Eurodollar Rate Loans are properly requested in such Notice of
Borrowing, upon its determination thereof, notice of the applicable interest
rate under Section 3.2. Each Bank shall, before 11:00 A.M. (or in the case
of a Subsidiary Borrowing being made on the same day, before 12:00 noon)
(New York City time) on the date of the proposed Subsidiary Borrowing, make
available for the account of its Applicable Lending Office to the
Administrative Agent at its address referred to in Section 10.2, in
immediately available funds, such Bank's Ratable Portion of each such
proposed Subsidiary Borrowing. After the Administrative Agent's receipt of
such funds and upon fulfillment of the applicable conditions set forth in
Article IV, the Administrative Agent will make such funds available to the
Subsidiary Borrowers at the Administrative Agent's aforesaid address.
(c) Each Notice of Borrowing pursuant to this Section 2.2 shall be
irrevocable and binding on the applicable Subsidiary Borrower. In the case
of a proposed Subsidiary Borrowing comprised of Eurodollar Rate Loans to any
Subsidiary Borrower, the Subsidiary Borrower requesting such Subsidiary
Borrowing shall indemnify each Bank against any loss, cost or expense
incurred by such Bank as a result of any failure to fulfill on or before the
date specified in such Notice of Borrowing the applicable conditions set
forth in Article IV, including, without limitation, any loss (excluding loss
of the margin payable in accordance with Section 3.2 on the amount of
principal not borrowed as a result of such failure), cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds
acquired by such Bank to fund any Eurodollar Rate Loan to be made by such
Bank to such Subsidiary Borrower as part of any such proposed Subsidiary
Borrowing when such Eurodollar Rate Loan to such Subsidiary Borrower, as a
result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice
from a Bank prior to the date of any proposed Subsidiary Borrowing pursuant
to this Section 2.2 that such Bank will not make available to the
Administrative Agent such Bank's Ratable Portion of such Subsidiary
Borrowing, the Administrative Agent may assume that such Bank has made such
Ratable Portion available to the Administrative Agent on the date of such
Subsidiary Borrowing in accordance with this Section 2.2 and the
Administrative Agent may, in reliance upon such assumption, make available to
the applicable Subsidiary Borrower on such date a corresponding amount. If
and to the extent that such Bank shall not have so made such Ratable Portion
available
-17-
to the Administrative Agent and the Administrative Agent has so made
available such amount, such Bank and such Subsidiary Borrower severally agree
to repay to the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount
is made available to such Subsidiary Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of such Subsidiary
Borrower, the interest rate applicable at the time to the Subsidiary Loans
comprising such Subsidiary Borrowings and (ii) in the case of such Bank, the
Federal Funds Rate. If such Bank shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute such Bank's
Subsidiary Loan as part of any such Subsidiary Borrowing for purposes of this
Agreement. If such Subsidiary Borrower shall repay to the Administrative
Agent such corresponding amount, such payment shall not relieve such Bank of
any obligation it may have to the Subsidiary Borrowers hereunder.
(e) The failure of any Bank to make any Subsidiary Loan to be made
by it to any Subsidiary Borrower shall not relieve any other Bank of its
obligation, if any, hereunder to make its Subsidiary Loan to such Subsidiary
Borrower on the date of such Subsidiary Borrowing, but no Bank shall be
responsible for the failure of any other Bank to make the Subsidiary Loan to
be made by such other Bank to such Subsidiary Borrower.
2.3. Repayment of the Subsidiary Loans. (a) Each Subsidiary
---------------------------------
Borrower shall pay the principal amount of the Subsidiary Loans of each Bank
to such Subsidiary Borrower 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) in Schedule 2.3 hereto opposite the
period specified in column (x) in such Schedule during which such date
occurs.
(b) Each Subsidiary Borrower shall repay the outstanding principal
amount of the Subsidiary Loans to such Subsidiary Borrower (together with all
accrued and unpaid interest thereon) in full on the Termination Date.
2.4. Optional Prepayments of the Subsidiary Loans. Each
--------------------------------------------
Subsidiary Borrower may, upon at least three Business Days' prior notice (or
at least one Business Day's prior notice in the case of Base Rate Loans) to
the Administrative Agent stating the proposed date and aggregate principal
amount of the prepayment of, and if such notice is given by any Subsidiary
Borrower such Subsidiary Borrower
-18-
shall, prepay the outstanding principal amount of the Subsidiary Loans made
to such Subsidiary Borrower, in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount
prepaid; provided, however, that each Subsidiary Borrower shall indemnify the
-------- -------
Banks pursuant to Section 10.4(c) in the event that any prepayment of any
Eurodollar Rate Loans made by such Subsidiary Borrower shall be made on a day
other than the last day of an Interest Period for such Subsidiary Loans.
Amounts borrowed under Section 2.1 and prepaid pursuant to this Section 2.5
may not be reborrowed. Any partial prepayment may be allocated to scheduled
installments of the Subsidiary Loans in any manner requested by the
appropriate Subsidiary Borrower.
2.5. Mandatory Prepayments of the Subsidiary Loans of the MSubs.
----------------------------------------------------------
The Subsidiary Loans of an MSub shall be due and payable on the date on which
such MSub ceases to be a direct or indirect wholly owned Subsidiary of Viacom
or Viacom International.
ARTICLE III
CONVERSION, INTEREST, PAYMENTS, FEES, ETC.
3.1. Conversion/Continuation Option. Any Subsidiary Borrower may
------------------------------
elect (i) at any time to convert Base Rate Loans to such Subsidiary Borrower
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 to
such Subsidiary Borrower 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 such Subsidiary 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 E hereto (a
"Notice of Conversion or Continuation") and shall be made by giving the
Administrative Agent at least one Business Day's, in the case of a conversion
to a Base Rate Loan, and three Business Days', in the case of a conversion to
or a continuation of a Eurodollar Rate Loan, prior written notice thereof
specifying (A) the amount and type of conversion or continuation, (B) in the
case of a conversion to or a continuation of Eurodollar Rate Loans, the
Interest Period therefor, and (C) in the case of a conversion, the date of
conversion (which date shall be a Business Day and, if a conversion from a
Eurodollar Rate Loan, shall also be the last day of the Interest Period
therefor). The Administrative Agent shall promptly (but in
-19-
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 of any Subsidiary Borrower, and no continuation in whole or in
part of Eurodollar Rate Loans of any Subsidiary Borrower upon the expiration
of any Interest Period therefor, shall be permitted at any time at which an
Event of Default shall have occurred and be continuing. If, within the time
period required under the terms of this Section 3.1, the Administrative Agent
does not receive a Notice of Conversion or Continuation from any Subsidiary
Borrower containing an election to continue all or any portion of the
Eurodollar Rate Loans to such Subsidiary Borrower for an additional Interest
Period or to convert all or any portion of such Subsidiary Loans, then, upon
the expiration of the Interest Period therefor, such Subsidiary Loans or the
portions thereof for which an election to continue or convert has not been
made will be automatically converted to Base Rate Loans. Each Notice of
Conversion or Continuation shall be irrevocable.
3.2. Interest. Each Subsidiary Borrower shall pay interest on the
--------
unpaid principal amount of each Subsidiary Loan to such Subsidiary Borrower
from the date thereof until the principal amount thereof shall be paid in
full, at the following rates per annum:
(a) Base Rate Loans. For Base Rate Loans, at a rate per annum
---------------
equal at all times to the Base Rate in effect from time to time, payable
quarterly in arrears on the last day of each September, December, March
and June, on the Termination Date and on the date any Base Rate Loan is
converted or paid in full.
(b) Eurodollar Rate Loans. For Eurodollar Rate Loans, at a rate
---------------------
per annum equal at all times during the applicable Interest Period for
each Eurodollar Rate Loan to the sum of the Eurodollar Rate for such
Interest Period plus the Applicable Eurodollar Rate Margin, payable in
arrears (i) on the last day of such Interest Period and (ii) if such
Interest Period has a duration of more than three months, on each day
during such Interest Period that occurs every three months from the
first day of such Interest Period.
(c) Default Rate of Interest. If any amount of principal of any
------------------------
Subsidiary Loan to any Subsidiary Borrower is not paid when due, whether
at stated maturity, by acceleration or otherwise, the interest rate
applicable to any such amount shall be increased by 2.00% per annum,
payable on demand, and if any
-20-
interest, fee or other amount payable by any Subsidiary Borrower
hereunder is not paid when due, such amount shall bear interest at a
rate per annum equal at all times to the Base Rate in effect from time
to time plus 2% per annum payable on demand.
3.3. Interest Rate Determination and Protection. (a) In the
------------------------------------------
Event that the Eurodollar Rate is not available from the Telerate Page, the
Eurodollar Rate for each Interest Period for Eurodollar Rate Loans to any
Subsidiary Borrower shall be determined by the Administrative Agent on the
basis of applicable rates furnished to and received by the Administrative
Agent from the Reference Banks two Business Days before such Interest Period.
Each Reference Bank agrees to furnish to the Administrative Agent timely
information for the purpose of determining each Eurodollar Rate. If any of
the Reference Banks shall not furnish such timely information to the
Administrative Agent for the purpose of determining any such interest rate,
the Administrative Agent shall determine such interest rate on the basis of
timely information furnished by the other Reference Bank or Reference Banks.
(b) The Administrative Agent shall give prompt notice to the
Subsidiary Borrowers and the Banks of the applicable interest rate determined
by the Administrative Agent for purposes of Section 3.2(a) or (b), and the
applicable rate, if any, furnished by each Reference Bank for the purpose of
determining the applicable interest rate under Section 3.2(b).
(c) If, with respect to Eurodollar Rate Loans to any Subsidiary
Borrower, the Majority Banks determine in good faith and notify the
Administrative Agent that the Eurodollar Rate for any Interest Period will
not adequately reflect the cost to such Banks of making such Subsidiary Loans
to such Subsidiary Borrower or funding or maintaining their respective
Eurodollar Rate Loans to such Subsidiary Borrower for such Interest Period,
the Administrative Agent shall forthwith so notify such Subsidiary Borrower
and the Banks, whereupon
(i) each Eurodollar Rate Loan to such Subsidiary Borrower 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 such Subsidiary Borrower delivers a timely Notice of
Conversion or Continuation with respect to such Subsidiary Loans; and
-21-
(ii) the obligations of the Banks to make Eurodollar Rate Loans to
such Subsidiary Borrower or to convert Subsidiary Loans to such
Subsidiary Borrower into Eurodollar Rate Loans shall be suspended until
the Administrative Agent shall notify such Subsidiary Borrower and the
Banks that the circumstances causing such suspension no longer exist.
3.4. Fees. (a) Each Subsidiary Borrower will pay on the last day
----
of each Fiscal Quarter to each of the Banks in arrears a fee (the "Commitment
Fee") accruing from the tenth Business Day after the Documentation Agent has
notified each Subsidiary 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 earlier of
the Funding Date and the Termination Date, on such Bank's aggregate average
daily unused Subsidiary Commitment with respect to such Subsidiary Borrower
as in effect from time to time at the rate of 0.3125% on any date prior to
the date on which Viacom's long-term, senior unsecured debt is rated by S&P
or Moody's, and on any date thereafter at the rate set forth below opposite
the Credit Rating applicable to Viacom on such date:
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 Viacom shall be effective
to adjust the Commitment Fee as of the date such change is announced.
(b) Viacom has agreed to pay to the Banks, Managing Agents,
Facility 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
-22-
(x) the Funding Date or (y) September 30, 1994, as separately agreed.
3.5. Increased Costs. (a) If, due to either (i) the introduction
---------------
of or any change (other than any change by way of imposition or increase of
reserve requirements included in the Eurodollar Rate Reserve Percentage) in,
or in the interpretation of, any law or regulation or (ii) the compliance
with any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), there shall be any
increase in the cost (other than with respect to income, franchise or
withholding taxes or other taxes of a similar nature) to any Bank of agreeing
to make or making, funding or maintaining any Eurodollar Rate Loans to any
Subsidiary Borrower, then (A) such Bank shall, as soon as such Bank becomes
aware of such increased cost, but in any event not later than 60 days after
such increased cost was incurred, deliver to such Subsidiary Borrower and the
Administrative Agent a certificate stating (1) the actual amount of such
increased cost incurred by such Bank and (2) that it is such Bank's customary
practice, from and after the date of this Agreement, to charge its borrowers
for increased costs incurred by it; (B) such Subsidiary Borrower shall,
within 30 days after its receipt of such certificate, at its sole option,
either (1) pay to the Administrative Agent for the account of such Bank
amounts sufficient to compensate such Bank for the increased cost incurred by
it as set forth in the certificate referred to above or (2) replace such Bank
in accordance with the provisions of Section 3.10, provided that if such
--------
Subsidiary Borrower does not exercise the option specified in clause (2)
above within 30 days after receipt of the certificate referred to above, then
(x) such Bank shall deliver to such Subsidiary Borrower and the
Administrative Agent a second certificate stating the increased cost incurred
by such Bank and (y) such Subsidiary Borrower shall promptly upon receipt of
such second certificate pay to the Administrative Agent for the account of
such Bank amounts sufficient to compensate such Bank for such increased cost;
and (C) such Bank shall use its reasonable best efforts to designate another
of its then existing offices as its Applicable Lending Office with respect to
the Subsidiary Loans of such Subsidiary Borrower 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 any
Subsidiary Borrower to any Bank as stated in any such certificate delivered
to such Subsidiary Borrower and the Administrative Agent pursuant to the
provisions of this Section 3.5(a) shall be conclusive and binding for all
purposes, absent manifest error. In
-23-
determining any such amount, such Bank may use reasonable averaging and
attribution methods. If such Subsidiary Borrower so notifies the
Administrative Agent within five Business Days after receipt of any
certificate delivered to such Subsidiary Borrower pursuant to the provisions
of this Section 3.5(a), such Subsidiary Borrower may either (x) prepay in
full all Eurodollar Rate Loans of such Bank to such Subsidiary Borrower then
outstanding in accordance with Section 3.8 and, additionally, reimburse such
Bank for such increased cost in accordance with this Section 3.5(a) or
(y) convert all Eurodollar Rate Loans of all Banks to such Subsidiary
Borrower then outstanding into Base Rate Loans in accordance with Section 3.1
and, additionally, reimburse such Bank for such increased cost in accordance
with this Section 3.5(a).
(b) If any Bank shall be required under Regulation D to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities with respect to the Subsidiary Loans of any
Subsidiary Borrower, then (i) such Bank shall, within 60 days after the end
of any Interest Period with respect to any Eurodollar Rate Loan to such
Subsidiary Borrower during which such Bank was so required to maintain such
reserves, deliver to such Subsidiary Borrower and the Administrative Agent a
certificate stating (A) that such Bank was required to maintain reserves and
as a result such Bank incurred additional costs in connection with making
Eurodollar Rate Loans to such Subsidiary Borrower, (B) in reasonable detail,
such Bank's computations of the amount of additional interest payable by such
Subsidiary Borrower pursuant to the provisions of Section 3.5(b)(ii) and
(C) that it is such Bank's customary practice, from and after the date of
this Agreement, to charge its borrowers for reserves so maintained by it, and
(ii) such Subsidiary Borrower shall, promptly upon receipt of any such
certificate, pay to the Administrative Agent, for the account of such Bank,
additional interest on the unpaid principal amount of each Eurodollar Rate
Loan of such Bank to such Subsidiary Borrower outstanding during the Interest
Period with respect to which the above-referenced certificate was delivered
to such Subsidiary Borrower, at a rate per annum equal to the difference
obtained by subtracting (x) the Eurodollar Rate for such Interest Period from
(y) the rate obtained by dividing such Eurodollar Rate by a percentage equal
to 100% minus the Eurodollar Rate Reserve Percentage of such Bank for such
-----
Interest Period. The amount of interest payable by such Subsidiary Borrower
to any Bank as stated in any certificate delivered to such Subsidiary
Borrower and the Administrative Agent pursuant to the provisions of this
Section 3.5(b) shall be conclusive and binding for all purposes, absent
manifest error.
-24-
(c) The payments required under Sections 3.5(a) and (b) are in
addition to any other payments and indemnities required under this Agreement.
3.6. Illegality. Notwithstanding any other provision of this
----------
Agreement, if the introduction of or any change in or in the interpretation
of any law or regulation, in each case after the date hereof, shall make it
unlawful, or any central bank or other Governmental Authority shall assert
that it is unlawful, for any Bank or its Eurodollar Lending Office to make
Eurodollar Rate Loans to any Subsidiary Borrower or to continue to fund or
maintain Eurodollar Rate Loans to any Subsidiary Borrower, then, on notice
thereof and demand therefor by such Bank to such Subsidiary Borrower through
the Administrative Agent, (i) the obligation of such Bank to make or to
continue Eurodollar Rate Loans to such Subsidiary Borrower and to convert
Base Rate Loans to such Subsidiary Borrower into Eurodollar Rate Loans shall
be suspended until such Bank through the Administrative Agent shall notify
such Subsidiary Borrowers that the circumstances causing such suspension no
longer exist and (ii) such Subsidiary Borrower shall forthwith prepay in full
all Eurodollar Rate Loans of such Bank to such Subsidiary Borrower then
outstanding, together with interest accrued thereon, unless such Subsidiary
Borrower, within five Business Days of such notice and demand, converts all
Eurodollar Rate Loans of all Banks to such Subsidiary Borrower then
outstanding into Base Rate Loans in accordance with the notice periods of
Section 3.1; provided, however, that before making any such demand, each Bank
-------- -------
agrees to use its reasonable best efforts to designate another of its then
existing offices as its Applicable Lending Office with respect to the
Subsidiary Loans of such Subsidiary Borrower if the making of such a
designation would, without any detrimental effect to such Bank, cause the
making of Eurodollar Rate Loans to such Subsidiary Borrower to not be subject
to this Section 3.6.
3.7. Capital Adequacy. If any Bank shall, at any time, reasonably
----------------
determine that (a) the adoption (i) after the date of this Agreement, of any
capital adequacy guidelines or (ii) at any time, of any other applicable law,
government rule, regulation or order regarding capital adequacy of banks or
bank holding companies, (b) any change in (I) any of the foregoing or (II)
the interpretation or administration of any of the foregoing by any
Governmental Authority, central bank or comparable agency or (c) compliance
with any policy, guideline, directive or request regarding capital adequacy
(whether or not having the force of law and whether or not failure to comply
therewith would be unlawful) of any Governmental Authority, central bank or
comparable agency, would have the effect of
-25-
reducing the rate of return on the capital of such Bank to a level below that
which such Bank could have achieved but for such adoption, change or
compliance (taking into consideration the policies of such Bank with respect
to capital adequacy in effect immediately before such adoption, change or
compliance) and (x) such reduction is as a consequence of the Subsidiary
Commitment with respect to any Subsidiary Borrower of, or the making,
converting or continuing of any Subsidiary Loans to any Subsidiary Borrower
by, such Bank hereunder and (y) such reduction is reasonably deemed by such
Bank to be material, then (1) such Bank shall deliver to such Subsidiary
Borrower and the Administrative Agent a certificate stating the reduction in
the rate of return such Bank will in the future suffer as a result of its
Subsidiary Commitment with respect to such Subsidiary Borrower or the making,
converting or continuing any Subsidiary Loans to any Subsidiary Borrower by
it to such Subsidiary Borrower hereunder and (2) such Subsidiary Borrower
shall, within 30 days after its receipt of such certificate, at its sole
option, either (A) pay to the Administrative Agent for the account of such
Bank from time to time as specified by such Bank such amount as shall be
sufficient to compensate such Bank for such reduced return, or (B) replace
such Bank in accordance with the provisions of Section 3.10; provided,
--------
however, that if such Subsidiary Borrower does not exercise the option
-------
specified in clause (B) above within 30 days after receipt of the certificate
referred to above, then (1) such Bank shall deliver to such Subsidiary
Borrower and the Administrative Agent a second certificate stating the
reduction in the rate of return of such Bank and (2) such Subsidiary Borrower
shall promptly pay, as specified by such Bank, to the Administrative Agent
for the account of such Bank amounts sufficient to compensate such Bank for
the reduction in its rate of return. The amount stated in any certificate
delivered to such Subsidiary Borrower pursuant to the provisions of this
Section 3.7 shall be conclusive and binding for all purposes, absent manifest
error. In determining any such amount, such Bank may use reasonable
averaging and attribution methods. The payments required under this
Section 3.7 are in addition to any other payments and indemnities required
hereunder.
3.8. Payments and Computations. (a) Each Subsidiary 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 10.2 in immediately available
funds without set-off or counterclaim. The Administrative Agent will
promptly thereafter (but in any event on the same day) cause to be
distributed like funds relating to the payment of principal or interest or
fees
-26-
ratably (other than amounts payable pursuant to Section 3.5, 3.6 or 3.7) to
the Banks for the account of their respective Applicable Lending Offices with
respect to such Subsidiary Borrower, 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 with respect to such Subsidiary Borrower, in each
case to be applied in accordance with the terms of this Agreement. Payment
received by the Administrative Agent after 11:00 A.M. (New York City time)
shall be deemed to be received on the next Business Day; provided, however,
-------- -------
that the Administrative Agent shall use its reasonable best efforts to invest
any amounts so received by the Administrative Agent in overnight investments
satisfactory to the Subsidiary Borrowers, and any earnings on any such
investments shall be for the applicable Subsidiary Borrower's account and may
be credited against any interest payable hereunder during such period.
(b) All computations of the Commitment Fee or of interest based on
the rate of interest specified in clause (a) of the definition of Base Rate
and of fees shall be made by the Administrative Agent on the basis of a year
of 365 or 366 days, as the case may be, and all computations of interest
based on the Eurodollar Rate or the Federal Funds Rate shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest and fees are payable. All
computations of the Commitment Fee shall be based on the aggregate average
daily unused Subsidiary Commitment of each Bank. Each determination by the
Administrative Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may
be.
(d) Unless the Administrative Agent shall have received notice
from any Subsidiary Borrower prior to the date on which any payment is due to
the Banks hereunder that such Subsidiary Borrower will not make such payment
in full, the Administrative Agent may assume that such Subsidiary Borrower
has made such payment in full to the Administrative Agent on such date and
the Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then
due such Bank. If and to the extent that such
-27-
Subsidiary Borrower shall not have so made such payment in full to the
Administrative Agent, each Bank shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to
such Bank until the date such Bank repays such amount to the Administrative
Agent, at the Federal Funds Rate.
3.9. Sharing of Payments, Etc. If any Bank shall obtain any
-------------------------
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Subsidiary Loans made by it to any
Subsidiary Borrower (other than pursuant to Section 3.5, 3.6 or 3.7) in
excess of its Ratable Portion of payments on account of the Subsidiary Loans
to such Subsidiary Borrower obtained by all the Banks, such Bank shall
forthwith purchase from the other Banks such participations in such
Subsidiary Loans made by them as shall be necessary to cause such purchasing
Bank to share the excess payment ratably with each of them; provided,
--------
however, that if all or any portion of such excess payment is thereafter
-------
recovered from such purchasing Bank, such purchase from each Bank shall be
rescinded and each such Bank shall repay to the purchasing Bank the purchase
price to the extent of such recovery together with an amount equal to such
Bank's ratable share (according to the proportion of (i) the amount of such
Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. Each Subsidiary
Borrower agrees that any Bank so purchasing a participation from another Bank
pursuant to this Section 3.9 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Bank were the direct
creditor of such Subsidiary Borrower in the amount of such participation.
3.10. Replacement Banks. Upon the election of any Subsidiary
-----------------
Borrower to replace any Bank pursuant to the provisions of
Section 3.5(a)(B)(2) or 3.7(2)(B), such Subsidiary Borrower shall provide to
the Administrative Agent a notice setting forth the replacement Bank or
Banks, and the Bank being so replaced shall take all actions as may be
necessary to transfer to such replacement Bank or Banks all of the rights and
obligations of such Bank hereunder (with appropriate provisions for other
amounts due to the Bank being replaced) and such replacement Bank or Banks
shall pay to the Bank being so replaced the amount outstanding of all
Subsidiary Loans made by such Bank to such Subsidiary Borrower hereunder, all
as though such replacement Bank or Banks were an assignee or assignees of
-28-
such Bank to which such Bank were making an assignment in accordance with the
provisions of Section 10.7.
ARTICLE IV
CONDITIONS OF LENDING
4.1. Conditions Precedent to the Making of the Subsidiary Loans.
----------------------------------------------------------
The making of the Subsidiary 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 Loan Party, and a copy
of the By-Laws of each such Person certified by its Secretary or one of
its Assistant Secretaries.
(c) A certificate of the Secretary or an Assistant Secretary of
each Loan Party certifying the names and true signatures of the officers
of such Loan Party who have been authorized to execute and deliver each
Loan Document to which it is a party and each other document and
certificate to be executed or delivered hereunder on behalf of such
Person.
(d) A favorable opinion of (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.
(e) A duly executed Parent Facility.
(f) A duly executed Parent Guarantee.
-29-
(g) A duly executed VII 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.
4.2. Additional Conditions Precedent to the Making of the
----------------------------------------------------
Subsidiary Loans. The making of the Subsidiary Loans hereunder is subject to
----------------
the further conditions precedent that on the date of such Subsidiary Loans
the following statements shall be true :
(a) The Loans under (and as defined in) the Parent Facility shall
be made simultaneously with the making of such Subsidiary Loans.
(b) Each Subsidiary Borrower shall have paid all costs, accrued
and unpaid fees and expenses referred to in Sections 3.4 and 10.4
(including, without limitation, the legal fees and expenses referred to
in Section 10.4(a)), in each case to the extent then due and payable.
(c) All Indebtedness of Viacom, the Subsidiary Borrowers and
Paramount under (i) the Existing Viacom Credit Agreement, (ii) the
Existing Viacom International Credit Agreement, and (iii) the Existing
Paramount Credit Agreements shall have been (or shall simultaneously be)
repaid and all commitments thereunder cancelled.
(d) Before and after giving effect thereto and to the application
of the proceeds therefrom, the representations and warranties of Viacom
contained in the Parent Facility (other than those stated to be made as
of a particular date) are true and correct in all material respects on
and as of such date as though made on and as of such date.
(e) Before and after giving effect thereto and to the application
of the proceeds therefrom, no event has occurred and is continuing, or
would result from the Subsidiary Loans being made on such date, which
constitutes a Default or an Event of Default.
-30-
The acceptance by each Subsidiary Borrower of the proceeds of such Subsidiary
Loan shall constitute a representation and warranty by such Subsidiary
Borrower that on the date of such Subsidiary Loan such statements are true.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1. Representations and Warranties in Parent Facility. To induce
-------------------------------------------------
the Banks to enter into this Agreement, each Subsidiary Borrower represents
and warrants to the Banks that each of the representations and warranties of
Viacom in the Parent Facility is true and correct.
ARTICLE VI
AFFIRMATIVE COVENANTS
As long as any of the Subsidiary Loans shall remain unpaid or any
Bank shall have any Subsidiary Commitment with respect to any Subsidiary
Borrower hereunder, unless otherwise agreed by the written consent of the
Majority Banks:
6.1. Compliance with Laws, Etc. Each Subsidiary Borrower shall
--------------------------
comply, and cause each of its Subsidiaries to comply, in all material
respects with all Requirements of Law, all FCC Licenses and Franchises except
such non-compliance as would not have a Material Adverse Effect or result in
a Material Credit Agreement Change.
6.2. Payment of Taxes, Etc. Each Subsidiary Borrower and any
----------------------
consolidated, combined or unitary group which includes such Subsidiary
Borrower or any of its Subsidiaries shall pay and discharge, and cause each
Subsidiary of such Subsidiary Borrower to pay and discharge, before the same
shall become delinquent, all lawful claims, taxes, assessments and
governmental charges or levies except where contested in good faith, by
proper proceedings, and where adequate reserves therefor have been
established on the books of such Subsidiary Borrower or such Subsidiary in
accordance with GAAP.
6.3. Maintenance of Insurance. Each Subsidiary Borrower shall
------------------------
maintain, and cause each of its Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or associations in such amounts
and covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties
-31-
in the same general areas in which such Subsidiary Borrower or such
Subsidiary operates. Each Subsidiary Borrower will furnish to the
Administrative Agent from time to time such information as may be requested
as to such insurance.
6.4. Preservation of Corporate Existence, Etc. Each Subsidiary
-----------------------------------------
Borrower shall preserve and maintain, and cause each of its Subsidiaries to
preserve and maintain, its respective corporate existence; provided, however,
-------- -------
that the corporate existence of any Subsidiary of a Subsidiary Borrower
(other than another Subsidiary Borrower or any Guarantor Subsidiary) may be
terminated if, in the good faith judgment of the board of directors or the
chief financial officer of such Subsidiary Borrower, such termination is in
the best interest of such Subsidiary Borrower and such termination would not
have a Material Adverse Effect; and provided further, however, that Viacom
-------- ------- -------
may merge into Viacom International, with Viacom International as the
surviving corporation, provided that upon the effectiveness of such merger,
--------
Viacom International shall assume, pursuant to an instrument satisfactory to
the Managing Agents, the obligations of Viacom under the Parent Facility and
under the other Loan Documents.
6.5. Books and Access. Each Subsidiary Borrower shall, and shall
----------------
cause each of its Subsidiaries to, keep proper books of record and accounts
in conformity with GAAP, and upon reasonable notice and at such reasonable
times during usual business hours as often as may be reasonably requested,
permit representatives of the Administrative Agent, at its own initiative or
at the request of any Bank, to make inspections of its Properties, to examine
its books, accounts and records and make copies and memoranda thereof and to
discuss its affairs and finances with its officers or directors and
independent public accountants.
6.6. Maintenance of Properties, Etc. Each Subsidiary Borrower
-------------------------------
shall maintain and preserve, and cause each of its Subsidiaries to maintain
and preserve, all of its Properties which are used or useful in the conduct
of its business in good working order and condition and, from time to time
make or cause to be made all appropriate repairs, renewals and replacements,
except where the failure to do so would not have a Material Adverse Effect.
6.7. Application of Proceeds. Each Subsidiary Borrower shall use
-----------------------
the proceeds of the Subsidiary Loans to such Subsidiary Borrower (i) to
refinance certain Indebtedness existing at the date hereof of such Subsidiary
Borrower or its Subsidiaries, or (ii) for other general corporate purposes.
-32-
6.8. Reporting Requirements. Each Subsidiary Borrower shall
----------------------
furnish to the Administrative Agent for distribution to the Banks:
(a) from time to time as the Administrative Agent may reasonably
request, copies of such statements, lists of Property, accounts, budgets,
forecasts, reports or information prepared by or for such Subsidiary Borrower
or within the control of such Subsidiary Borrower;
(b) promptly upon any Subsidiary Borrower or any of its
Subsidiaries learning of (i) any Event of Default or any Default, or (ii) any
Material Adverse Change or Material Credit Agreement Change, telephonic or
telegraphic notice specifying the nature of such Event of Default, Default,
Material Adverse Change or Material Credit Agreement Change, including the
anticipated effect thereof, which notice shall be promptly confirmed in
writing within five days;
(c) from time to time, such other information and materials as the
Administrative Agent may reasonably request.
ARTICLE VII
NEGATIVE COVENANTS
So long as any of the Subsidiary Loans shall remain unpaid or any
Bank shall have any Subsidiary Commitment with respect to any Subsidiary
Borrower hereunder, without the written consent of the Majority Banks:
7.1. Liens, Etc. No Subsidiary Borrower shall, directly or
-----------
indirectly, create or suffer to exist, or permit any of its Subsidiaries to
create or suffer to exist, any Lien upon or with respect to any of its
Properties, whether now owned or hereafter acquired, or assign, or permit any
of its Subsidiaries to assign, any right to receive income, in each case to
secure or provide for the payment of any Indebtedness of any Person, other
than as permitted under the Parent Facility.
7.2. Transactions with Affiliates. No Subsidiary Borrower shall
----------------------------
engage in, nor shall it permit any of its Subsidiaries to engage in, any
transaction with an Affiliate of such Subsidiary Borrower or of such
Subsidiary other than as permitted under the Parent Facility.
7.3. Margin Stock. No Subsidiary Borrower shall permit more than
------------
twenty-five percent (25%) of the value,
-33-
within the meaning of Regulation U, as determined by any reasonable method,
of the assets of such Subsidiary Borrower and its Subsidiaries to be Margin
Stock, nor will any Subsidiary Borrower use the proceeds of any Subsidiary
Loan to purchase or carry any Margin Stock in violation of Regulation U.
7.4. Subsidiary Indebtedness. No Subsidiary Borrower shall permit
-----------------------
any of its Subsidiaries to incur Indebtedness for borrowed money except under
this Agreement.
7.5. Other Restrictions on Indebtedness. No Subsidiary Borrower
----------------------------------
shall incur Indebtedness for borrowed money (other than Commercial Paper)
maturing earlier than six months after the Termination Date.
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Events of Default. If any of the following events ("Events
-----------------
of Default") shall occur and be continuing:
(a) Any Subsidiary Borrower or any other Loan Party shall fail to
pay (i) any principal when due in accordance with the terms and
provisions of this Agreement or any other Loan Document, or (ii) any
interest on any amounts due hereunder or thereunder, or any fee or any
other amount due hereunder or thereunder within three Business Days
after the same becomes due and payable; or
(b) Any representation or warranty made by any Loan Party in this
Agreement or any other Loan Document or by any Loan Party (or any of its
officers) in connection with this Agreement or any other Loan Document
shall prove to have been incorrect in any material respect when made; or
(c) Any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in this Agreement or any other Loan
Document, which failure or change shall remain unremedied for fifteen
days after the earlier of the date on which (i) telephonic or
telegraphic notice thereof shall have been given to the Administrative
Agent by any Subsidiary Borrower pursuant to Section 6.8(b), or
(ii) written notice thereof shall have been given to such Subsidiary
Borrower by the Administrative Agent or any Bank; or
-34-
(d) Any Loan Party or any of its Subsidiaries shall fail to pay
any principal of, or premium or interest on, any Indebtedness in an
aggregate principal amount of $50,000,000 or more (excluding
Indebtedness hereunder) taken together with all other Indebtedness of
Viacom or any of its Subsidiaries (including any Subsidiary Borrower or
any of its Subsidiaries) with respect to which any such failure shall
have occurred, when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise); or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Indebtedness, if
the effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness or to terminate any
commitment to lend; or any such Indebtedness shall be declared to be due
and payable, or required to be prepaid (other than by a regularly
scheduled required prepayment), prior to the stated maturity thereof
and, with respect to all of the foregoing, after the expiration of any
applicable grace period or the giving of any required notice or both;
provided, however, that no extension of any grace period applicable to
-------- -------
any such Indebtedness shall be taken into account for the purposes of
this subsection (d); or
(e) There shall occur and be continuing an Event of Default under
(and as defined in) the Parent Facility; or
(f) Viacom, or any of its Material Subsidiaries or any other Loan
Party shall generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors, or any
proceedings shall be instituted by or against Viacom, any of its
Material Subsidiaries or any other Loan Party seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee or
other similar official for it or for a material part of its Properties
employed in its business or any writ, attachment, execution or similar
process shall be issued or levied against a material part of the
Properties employed in its business or any of its Subsidiaries, and, in
the case of any such proceedings instituted against Viacom, or any of
its Material
-35-
Subsidiaries or any other Loan Party (but not instituted by it), either
such proceedings shall remain undismissed or unstayed for a period of 60
days or any of the actions sought in such proceedings shall occur; or
Viacom or any of its Material Subsidiaries or any other Loan Party shall
take any corporate action to authorize any of the actions set forth
above in this subsection (f); or
(g) Any order for the payment of money or judgment of any court,
not appealable or not subject to certiorari or appeal (a "Final
Judgment"), which, with other outstanding Final Judgments and any such
judgments against Viacom or any of its Subsidiaries other than the
Subsidiary Borrowers, exceeds an aggregate of $50,000,000 shall be
rendered against any Subsidiary Borrower or any of its Material
Subsidiaries and, within 60 days after entry thereof, such Final
Judgment shall not have been discharged; or
(h) (i) With respect to any Plan, a final determination is made
that a prohibited transaction within the meaning of Section 4975 of the
Code or Section 406 of ERISA occurred which results in direct or
indirect liability of any Subsidiary Borrower or any of its Material
Subsidiaries, (ii) with respect to any Title IV Plan, the filing of a
notice to voluntarily terminate any such plan in a distress termination,
(iii) with respect to any Multiemployer Plan, any Subsidiary Borrower,
any of its Material Subsidiaries or any of its or their ERISA Affiliates
shall incur any Withdrawal Liability, or (iv) with respect to any
Qualified Plan, any Subsidiary Borrower, any of its Material
Subsidiaries or any of its or their ERISA Affiliates shall incur an
accumulated funding deficiency or request a funding waiver from the IRS;
provided, however, that the events listed in clauses (i)-(iv) hereof
-------- -------
shall constitute Events of Default only if the liability, deficiency or
waiver request of such Subsidiary Borrower, any of its Material
Subsidiaries or any of its or their ERISA Affiliates, together with any
such liability, deficiency or waiver request of Viacom or any of its
Material Subsidiaries other than the Subsidiary Borrowers, 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 such Subsidiary Borrower, the relevant Material
Subsidiary or the relevant ERISA
-36-
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 Viacom and such failure of NAI
shall remain unremedied for fifteen days after the earlier of the date
on which (A) telephonic or telegraphic notice thereof shall have been
given to the Administrative Agent by the Subsidiary Borrowers pursuant
to Section 6.9, or (B) written notice thereof shall have been given to
the Subsidiary Borrowers 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 any
Subsidiary Borrower, declare the obligation of each Bank to make Subsidiary
Loans to such Subsidiary Borrowers 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 any Subsidiary Borrower, declare all
amounts due from such Subsidiary Borrower under this Agreement and all
interest thereon to be forthwith due and payable, whereupon all amounts due
from such Subsidiary Borrower under this Agreement and all such interest and
all such amounts shall become and be forthwith due and payable; provided,
--------
however, that upon an actual or deemed entry of an order for relief with
-------
respect to any Subsidiary Borrower or any of its Material Subsidiaries under
the federal Bankruptcy Code, (A) the obligation of each Bank to make
Subsidiary Loans to such Subsidiary Borrower shall automatically be
terminated and (B) all amounts due from such Subsidiary Borrower under this
Agreement and all such interest and all such amounts shall automatically and
without further notice become and be due and payable. In addition to the
remedies set forth above, the Administrative Agent may exercise any other
remedies provided for by this Agreement in accordance with the terms hereof
or any other remedies provided by applicable law.
ARTICLE IX
THE MANAGING AGENTS AND THE FACILITY AGENTS
9.1. Authorization and Action. Each Bank hereby appoints and
------------------------
authorizes each Facility Agent to take such
-37-
action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to such Facility Agent by the terms hereof,
together with such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement, no Facility Agent shall
be required to exercise any discretion or take any action, but each shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority Banks
(or when expressly required hereunder, all the Banks), and such instructions
shall be binding upon all Banks; provided, however, that no Facility Agent
-------- -------
shall be required to take any action that exposes such Facility Agent to
personal liability or that is contrary to this Agreement or applicable law.
Each Facility Agent agrees to give to each Bank prompt notice of each notice
given to it by any Subsidiary Borrower pursuant to the terms of this
Agreement.
9.2. Managing Agents' and Facility Agents' Reliance, Etc. Neither
----------------------------------------------------
the Managing Agents, the Facility Agents, their Affiliates nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by any of them under or in connection
with this Agreement, except for its own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, (i) any
Managing Agent or Facility Agent may consult with legal counsel (including
counsel to the Subsidiary Borrowers), 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 any Subsidiary
Borrower or to inspect the Properties (including the books and records) of
any Subsidiary Borrower; (iv) neither the Managing Agents nor the Facility
Agents shall be responsible to any Bank for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement
or any other instrument or document furnished pursuant hereto; and
(v) neither the Managing Agents nor the Facility Agents shall incur liability
under or in respect of this Agreement by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telegram, cable
or telex) believed by it to be genuine and signed or sent by
-38-
the proper party or parties. Neither the Agents nor the Co-Agents shall, in
their respective capacities as such, have any duties under this Agreement
other than those that they have in their capacities as Banks.
9.3. The Bank of New York, Citibank, N.A., Morgan Guaranty Trust
-----------------------------------------------------------
Company of New York, Bank of America NT&SA and Their Affiliates. With
---------------------------------------------------------------
respect to the Subsidiary Commitments of The Bank of New York, Citibank,
N.A., Morgan Guaranty Trust Company of New York and Bank of America NT&SA,
respectively, and the Subsidiary 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, any Subsidiary Borrower, any of its Subsidiaries and any
Person who may do business with or own securities of any Subsidiary 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 a Facility Agent, as the case may
be, and without any duty to account therefor to the Banks.
9.4. Bank Credit Decision. Each Bank acknowledges that it has,
--------------------
independently and without reliance upon the Managing Agents, the Facility
Agents, the Arrangers, the Agents, the Co-Agents or any other Bank, and based
on the financial statements referred to in Article VII of the Parent Facility
and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Bank
also acknowledges that it will, independently and without reliance upon the
Managing Agents, the Facility Agents, the Arrangers, the Agents, the Co-
Agents or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement.
-39-
9.5. Determinations Under Sections 4.1, and 4.2. For purposes of
------------------------------------------
determining compliance with the conditions specified in Sections 4.1 and 4.2,
each Bank shall be deemed to have consented to, approved or accepted, or to
be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Banks unless
an officer of the Administrative Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Bank
prior to the applicable Subsidiary Borrowing specifying its objection thereto
(unless such objection shall have been withdrawn by notice to the
Administrative Agent to that effect or such Bank shall have made available to
the Administrative Agent such Bank's ratable portion of such Subsidiary
Borrowing).
9.6. Indemnification. Each Bank agrees to indemnify the Managing
---------------
Agents, the Facility Agents, the Arrangers and their respective Affiliates,
and their respective directors, officers, employees, agents and advisors (to
the extent not reimbursed by the Subsidiary Borrowers), ratably according to
such Bank's Ratable Portion of the Subsidiary Commitments, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements (including, without
limitation, fees and disbursements of legal counsel) of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against, any
such Person in any way relating to or arising out of this Agreement or any
action taken or omitted by any such Person under this Agreement; provided,
--------
however, that no Bank shall be liable for any portion of such liabilities,
-------
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from any such Person's gross negligence
or willful misconduct or from any violation or alleged violation by any such
Person or any other Bank of any law, rule or regulation or any guideline or
request from any central bank or other Governmental Authority (whether or not
having the force of law) or, with respect to any Managing Agent or Facility
Agent, any conflict or alleged conflict between its rights and duties in its
capacity as such or as a Bank under this Agreement and any other rights or
duties it may have in any other capacity in which it may act in connection
with the consummation of the transactions contemplated by this Agreement,
whether or not such Bank is a party to such transactions. Without limitation
of the foregoing, each Bank agrees to reimburse any such Person promptly upon
demand for its ratable share of any out-of-pocket expenses (including fees
and disbursements of one counsel) incurred by such Person in connection with
the preparation, execution, delivery, administration, modification, amendment
-40-
or enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, this
Agreement, to the extent that such Person is not reimbursed for such expenses
by the Subsidiary Borrowers.
9.7. Successor Facility Agents. Any Facility Agent may resign at
-------------------------
any time by giving written notice thereof to the Banks and the Subsidiary
Borrowers and may be removed at any time with or without cause by the
Majority Banks. Upon any such resignation or removal, the Majority Banks
shall have the right to appoint a successor to such Facility Agent. If no
successor to such Facility Agent shall have been so appointed by the Majority
Banks, and shall have accepted such appointment, within 30 days after the
retiring Facility Agent's giving of notice of resignation or the Majority
Banks' removal of such retiring Facility Agent, then such retiring Facility
Agent on behalf of the Banks, shall appoint a successor Facility Agent (which
successor Facility Agent shall be a Bank or another commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $50,000,000). Upon the
acceptance of any appointment as a Facility Agent hereunder by any successor
Facility Agent, such successor Facility Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring Facility Agent, and such retiring Facility Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Facility Agent's resignation or removal hereunder, the provisions of this
Article IX shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Facility Agent.
ARTICLE X
MISCELLANEOUS
10.1. Amendments, Etc. No amendment or waiver of any provision of
----------------
this Agreement, nor consent to any departure by any Subsidiary Borrower
therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Banks, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent
-------- -------
shall, unless in writing signed by all the Banks and consented to by all of
the Banks as defined under the Parent Facility, do any of the following: (a)
waive any of the conditions specified in Section 4.1 or 4.2; (b) increase the
Subsidiary Commitments
-41-
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 10.1; and provided further, however, that no amendment, waiver or
-------- ------- -------
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Persons required above to take such action, affect the rights
or duties of the Administrative Agent under this Agreement.
10.2. Notices, Etc. Except as otherwise set forth herein, all
-------------
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopy or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered by hand, if to any
Subsidiary Borrower, c/o Viacom Inc., 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 Subsidiary Borrowers, any
Bank or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party
in a written notice to the Subsidiary Borrowers and the Administrative Agent.
All such notices and communications shall, when mailed, telegraphed, telexed,
telecopied, cabled or delivered, be effective when deposited in the mails,
delivered to the telegraph company, confirmed by telex answerback, telecopied
with confirmation of receipt, delivered to the cable company or delivered by
hand to the addressee or its agent, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II or IX shall
not be effective until received by the Administrative Agent.
Each of the Subsidiary Borrowers hereby authorizes Viacom to
deliver any written notices or requests contemplated hereunder on its behalf,
and each other party hereto may rely upon any such notice or request from
Viacom from time to time, until notice to the contrary is received in writing
from any Subsidiary Borrower.
10.3. No Waiver; Remedies. No failure on the part of any Bank,
-------------------
the Managing Agents or any Facility Agent to exercise, and no delay in
exercising, any right hereunder
-42-
shall operate as a waiver thereof; nor shall any single or partial exercise
of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
10.4. Costs; Expenses; Indemnities. (a) Each Subsidiary Borrower
----------------------------
agrees to pay on demand all costs and expenses in connection with the
preparation, execution, delivery, administration, modification and amendment
of this Agreement, the other Loan Documents and the other documents to be
delivered hereunder or thereunder, including, without limitation, the
specified reasonable fees and out-of-pocket expenses of one counsel to the
Managing Agents and the Facility Agents and the Arrangers with respect
thereto and with respect to advising the Managing Agents, the Facility Agents
and the Arrangers as to their rights and responsibilities under this
Agreement, and all costs and expenses of the Managing Agents, the Facility
Agents and the Banks (including, without limitation, reasonable counsel fees
and expenses) in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the other
Loan Documents and the other documents to be delivered hereunder and
thereunder.
(b) Each Subsidiary 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
Subsidiary Commitments or any undertakings in connection therewith, or the
proposed or actual application of the proceeds of the Subsidiary Loans (all
of the foregoing collectively, the "Indemnified Liabilities") and will
reimburse each Indemnified Person on a current basis for all expenses
(including counsel fees as they are incurred by such party) in connection
with investigating, preparing or defending any such action, claim or suit,
whether or not in connection with pending or threatened litigation
irrespective of whether such Indemnified Person is designated a party
-43-
thereto; provided that no Subsidiary Borrower shall have any liability
--------
hereunder to any Indemnified Person with respect to Indemnified Liabilities
which are determined by a final and nonappealable judgment of a court of
competent jurisdiction to have arisen primarily from the gross negligence or
willful misconduct of such Indemnified Person; and provided further, that if
-------- -------
the Subsidiary Borrowers have determined in good faith that such Indemnified
Liabilities were primarily the result of such Indemnified Person's gross
negligence or willful misconduct, they shall not be obligated to pay such
Indemnified Liabilities until a court of competent jurisdiction has
determined whether such Indemnified Person acted with gross negligence or
willful misconduct. If for any reason the foregoing indemnification is
unavailable to an Indemnified Person or insufficient to hold an Indemnified
Person harmless, then each Subsidiary Borrower shall contribute to the amount
paid or payable by such Indemnified Person as a result of any Indemnified
Liability in such proportion as is appropriate to reflect not only the
relative benefits received by such Subsidiary Borrower and each Managing
Agent, each Facility Agent, each Arranger and each Bank, but also the
relative fault of such Subsidiary Borrower and each Managing Agent, each
Facility Agent, each Arranger and each Bank, as well as any other relevant
equitable considerations. The foregoing indemnity shall be in addition to
any rights that any Indemnified Person may have at common law or otherwise,
including, but not limited to, any right to contribution.
(c) If any Bank receives any payment of principal of, or is
subject to a conversion of, any Eurodollar Rate Loan of any Subsidiary
Borrower other than on the last day of an Interest Period relating to such
Subsidiary Loan, as a result of any payment or conversion made by any
Subsidiary Borrower or acceleration of the maturity of the amounts due under
this Agreement pursuant to Section 8.1 or for any other reason, such
Subsidiary Borrower shall, upon demand by such Bank (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Bank any amounts required to compensate such Bank for any
additional losses, costs or expenses which it may reasonably incur as a
result of such payment or conversion, including, without limitation, any loss
(excluding loss of the margin payable in accordance with Section 3.2 on the
amount of principal so paid, or any loss), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by
such Bank to fund or maintain such Subsidiary Loan. The foregoing
obligations of the Subsidiary Borrowers contained in paragraphs (a), (b) and
(c) of this Section 10.4, and the obligations of the Subsidiary Borrowers
contained in Sections 3.5 and 3.7, shall survive the payment of the
Subsidiary Loans.
-44-
10.5. Right of Set-Off. Upon (i) the occurrence and during the
----------------
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 8.1 to authorize the
Administrative Agent to declare all amounts under this Agreement due and
payable pursuant to the provisions of Section 8.1 or the automatic
acceleration of such amounts pursuant to the proviso to that Section, each
Bank is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the credit or the
account of any Subsidiary Borrower against any and all of the obligations of
such Subsidiary Borrower now or hereafter existing under this Agreement
irrespective of whether or not such Bank shall have made any demand under
this Agreement and although such obligations may be unmatured. Each Bank
agrees promptly to notify such Subsidiary Borrower after any such set-off and
application made by such Bank; provided, however, that the failure to give
-------- -------
such notice shall not affect the validity of such set-off and application.
The rights of each Bank under this Section 10.5 are in addition to any other
rights and remedies (including, without limitation, any other rights of set-
off) which such Bank may have.
10.6. Binding Effect. This Agreement shall become effective when
--------------
it shall have been executed by each of the Subsidiary Borrowers, each of the
Managing Agents, each of the Facility Agents and each of the Arrangers and
when the Managing Agents shall have been notified by each of the Banks that
such Bank has executed it and thereafter shall be binding upon and inure to
the benefit of the Subsidiary Borrowers, each of the Managing Agents, each of
the Facility Agents, each of the Arrangers and each of the Banks and their
respective successors and assigns, except that (i) the Subsidiary Borrowers
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 Subsidiary
Loans or any of its rights or obligations hereunder except in accordance with
Section 10.7 or as expressly required hereunder.
10.7. Assignments and Participations; Additional Banks. (a) Any
------------------------------------------------
Bank may, at any time, with notice substantially in the form of Exhibit F
hereto (each, a "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
-45-
delegate its duties under this Agreement (A) to any other Bank or any
affiliate of any Bank which actually controls, is controlled by, or is under
common control with such Bank or to any Federal Reserve Bank (in either case
without limitation as to amount), or (B) with the prior consent of the
Subsidiary Borrowers (such consent not to be unreasonably withheld), to any
other Person (but if in part, in a minimum amount that, taken together with
amounts assigned to the same transferee under the Parent Facility, equals at
least $25,000,000 or, if less, the balance of such Bank's Subsidiary
Commitment); provided, however, that each assigning Bank must assign an
-------- -------
identical percentage of 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 Subsidiary Loans and Subsidiary Loan
Commitments under this Agreement and Term Loans and Term Loan Commitment
under the Parent 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 Funding Date (or such
other date as may be determined in accordance with the Syndication 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
Subsidiary Commitment with respect to any Subsidiary Borrower, or the
obligations owing to or from any Person existing under this Agreement;
provided, however, that (i) as between such Bank and such Subsidiary
-------- -------
Borrower, the existence of such participations shall not give rise to any
direct rights or obligations between such Subsidiary Borrower and the
participants; (ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations; (iii) such Subsidiary
Borrower, the Managing Agents, the Facility Agents and the other Banks shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement; and (iv) no such sale or
grant of a participation shall, without the consent of such Subsidiary
Borrower, require such Subsidiary Borrower to file a registration statement
with the Securities and Exchange Commission or apply to qualify the
Subsidiary Commitments with respect to such Subsidiary Borrower or the
Subsidiary Loans to such Subsidiary Borrower under the securities laws of any
state.
-46-
(c) If an assignment is made by any Bank in accordance with the
provisions of paragraph (a) above, upon acceptance and recording by the
Administrative Agent, and approval by the Subsidiary Borrowers, where
applicable, of each Notice of Assignment and Acceptance, (i) the assignee
thereunder shall become a party to this Agreement and the Subsidiary
Borrowers shall release and discharge the assigning Bank from its duties,
liabilities or obligations under this Agreement to the extent the same are so
assigned and delegated by such Bank, provided that no such consent, release
--------
or discharge shall have effect until the Subsidiary Borrowers 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. Each Subsidiary Borrower agrees that each
such disposition will give rise to a direct obligation of any Subsidiary
Borrower to any such assignee.
(d) Each Subsidiary Borrower authorizes each Bank to disclose to
any prospective assignee or participant and any assignee or participant any
and all financial information in such Bank's possession concerning such
Subsidiary 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 such Subsidiary Borrower received by it from such
Bank in accordance with Section 10.11.
(e) Any Bank which sells or grants participations in any
Subsidiary Loans to any Subsidiary Borrower or its Subsidiary Commitment with
respect to any Subsidiary Borrower may not grant to the participants the
right to vote other than on amendments, consents, waivers, modifications or
other actions which change the principal amount of, postpone the scheduled
maturity of, or decrease the interest rates applicable to, any Subsidiary
Loans to such Subsidiary Borrower under, or increase the amount of, such
Subsidiary Commitment with respect to such Subsidiary Borrower (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 such Subsidiary Borrower, only the Bank shall be entitled to cast
such votes.
(f) No participant in any Bank's rights or obligations shall be
entitled to receive any greater payment under Section 3.5 or 3.7 than such
Bank would have been entitled to receive with respect to the rights
participated, and no participation shall be sold or granted to any Person as
to which the events specified in Section 3.6 have occurred on or before the
date of participation.
-47-
(g) The Administrative Agent shall maintain at its address
referred to in Section 10.2 a copy of each Notice of Assignment and
Acceptance received by it and a register, containing the terms of each Notice
of Assignment and Acceptance, for the recordation of the names and addresses
of each Bank and the Subsidiary Commitment of each Bank with respect to each
Subsidiary Borrower, and principal amount of the Subsidiary Loans owing to
each Bank from each Subsidiary Borrower, from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and each Subsidiary Borrower, the Banks, the Facility
Agents and the Managing Agents may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by any Subsidiary Borrower, any
Bank, any Facility Agent or any Managing Agent at any reasonable time and
from time to time upon reasonable prior notice.
10.8. Majority Banks are Third Party Beneficiaries. It is the
--------------------------------------------
intention of the parties hereto that no third party shall be deemed to be a
third party beneficiary or have any rights under or by virtue of this
Agreement except that the Banks under the Parent Facility shall be third
party beneficiaries of those provisions of this Agreement pursuant to which
they are given the right to vote with respect to certain matters under this
Agreement.
10.9. GOVERNING LAW; SEVERABILITY. THIS AGREEMENT AND THE RIGHTS
---------------------------
AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. WHEREVER POSSIBLE, EACH
PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED IN SUCH MANNER AS TO BE
EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS
AGREEMENT SHALL BE PROHIBITED BY OR INVALID UNDER APPLICABLE LAW, SUCH
PROVISION SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR
INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE
REMAINING PROVISIONS OF THIS AGREEMENT.
10.10. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
------------------------------------------------
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY DOCUMENT RELATED HERETO MAY BE BROUGHT IN THE COURTS OF THE STATE OF
NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH SUBSIDIARY
BORROWER HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE
PARTIES HERETO
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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) Each Subsidiary Borrower irrevocably consents to the service
of process of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at its address specified for notices in or pursuant to
Section 10.2 hereof, such service to become effective 30 days after such
mailing.
(c) Nothing contained in this Section 10.10 shall affect the right
of any Managing Agent, any Facility Agent or any Bank to serve process in any
other manner permitted by law or commence legal proceedings or otherwise
proceed against any Subsidiary Borrower in any other jurisdiction.
(d) Each of the parties hereto waives any right it may have to
trial by jury in any proceeding arising out of this Agreement.
10.11. Confidentiality. Each Bank, each Managing Agent and each
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Facility Agent agrees to keep confidential information obtained by it
pursuant hereto (or otherwise obtained from any Subsidiary Borrower in
connection with this Agreement) confidential in accordance with such Person's
customary practices and agrees that it will only use such information in
connection with the transactions contemplated by this Agreement and not
disclose any of such information other than (i) to such Person's employees,
counsel, representatives and agents who are or are expected to be involved in
the evaluation of such information in connection with the transactions
contemplated by this Agreement and who in each case agree to be bound by the
provisions of this sentence, (ii) to the extent that disclosure by such
Person is required, or to the extent that such Person has been advised by
counsel that disclosure is required, in order to comply with any law,
regulation or judicial order or requested or required by bank regulators or
auditors or other Governmental Authority, (iii) to assignees or participants
of the Subsidiary Loans to any Subsidiary Borrower or Subsidiary Commitments
with respect to any Subsidiary Borrower or potential assignees or
participants of the Subsidiary Loans to any Subsidiary Borrower or Subsidiary
Commitments with respect to any Subsidiary Borrower 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
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employees, counsel, representatives or agents, in violation of this Section
10.11.
10.12. Section Titles. The Section titles contained in this
--------------
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
10.13. Execution in Counterparts. This Agreement may be executed
-------------------------
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed as of the date first above written.
VIACOM INTERNATIONAL INC., as a Subsidiary Borrower
By:
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Name:
Title:
On behalf of the following Subsidiary Borrowers:
VIACOM CABLEVISION OF DAYTON INC.,
WNYT INC.,
WMZQ INC. and
WVIT INC.
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Managing Agents
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THE BANK OF NEW YORK, as Managing Agent, the
Documentation Agent and a Bank
By:
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Name:
Title:
CITIBANK, N.A., as Managing Agent, the
Administrative Agent and a Bank
By:
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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
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BANK OF MONTREAL, as Agent and a Bank
By:
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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:
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Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE, as Agent and a
Bank
By:
--------------------------------------------------
Name:
Title:
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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:
THE INDUSTRIAL BANK OF JAPAN, LTD., as Agent and a
Bank
By:
--------------------------------------------------
Name:
Title:
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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:
THE TORONTO-DOMINION BANK, as Agent and a Bank
By:
--------------------------------------------------
Name:
Title:
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UNION BANK, as Agent and a Bank
By:
--------------------------------------------------
Name:
Title:
Co-Agents
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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:
THE MITSUBISHI BANK, LIMITED, as Co-Agent and a Bank
By:
--------------------------------------------------
Name:
Title:
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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
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JP MORGAN SECURITIES INC., as the
Syndication Agent
By:
----------------------------------
Name:
Title:
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