Exhibit 10.2
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$500,000,000
FILM FINANCE CREDIT AGREEMENT,
dated as of
May 10, 1996,
among
VIACOM FILM FUNDING COMPANY INC.
as Borrower,
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VIACOM INC.
and
VIACOM INTERNATIONAL INC.
as Guarantors,
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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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and
THE BANKS IDENTIFIED AS AGENTS
ON THE SIGNATURE PAGES HEREOF,
as Agents
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Computation of Time Periods . . . . . . . . . . . . . . . . . . . 18
1.3. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE II
AMOUNT AND TERMS OF THE LOANS
2.1. The Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.2. Making the Loans . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.3. Termination or Reduction of the
Loan Commitments . . . . . . . . . . . . . . . . . . . . . . . . 21
2.4. Repayment of the Loans . . . . . . . . . . . . . . . . . . . . . . 22
2.5. Optional Prepayments of the Loans . . . . . . . . . . . . . . . . 22
ARTICLE III
CONVERSION, INTEREST, PAYMENTS, FEES, ETC.
3.1. Conversion/Continuation Option . . . . . . . . . . . . . . . . . 22
3.2. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.3. Interest Rate Determination and Protection . . . . . . . . . . . 24
3.4. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.5. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.6. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.7. Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . 28
3.8. Payments and Computations . . . . . . . . . . . . . . . . . . . . 29
3.9. Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . 30
3.10. Replacement Banks . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE IV
CONDITIONS OF LENDING
4.1. Conditions Precedent to the Making
of the Initial Loans . . . . . . . . . . . . . . . . . . . . . . 31
4.2. Additional Conditions Precedent to the
Making of the Initial Loans . . . . . . . . . . . . . . . . . . 32
4.3. Conditions Precedent to the Making
of Each Loan . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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ARTICLE V
GUARANTEE
5.1. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.2. Guarantee Absolute . . . . . . . . . . . . . . . . . . . . . . . . 33
5.3. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.4. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.5. Continuing Guarantee; Transfer of Interest . . . . . . . . . . . . 34
5.6. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Corporate Existence; Compliance with Law . . . . . . . . . . . . 35
6.2. Corporate Power; Authorization; Enforceable
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.3. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.4. Financial Information . . . . . . . . . . . . . . . . . . . . . . 37
6.5. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.6. Margin Regulations . . . . . . . . . . . . . . . . . . . . . . . 38
6.7. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
6.8. No Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.9. Investment Company Act . . . . . . . . . . . . . . . . . . . . . 39
6.10. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.11. Environmental Protection . . . . . . . . . . . . . . . . . . . . 39
6.12. Title and Liens . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.13. Trademarks, Copyrights, Etc. . . . . . . . . . . . . . . . . . . 40
6.14. FCC Licenses, Franchises . . . . . . . . . . . . . . . . . . . . 40
6.15. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE VII
FINANCIAL COVENANTS
7.1. Total Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . 41
7.2. Ratio of EBIDT to Trailing Total Cash
Interest and Preferred Dividends . . . . . . . . . . . . . . . . 41
7.3. Minimum Net Worth . . . . . . . . . . . . . . . . . . . . . . . . 41
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ARTICLE VIII
AFFIRMATIVE COVENANTS
8.1. Compliance with Laws, Etc. . . . . . . . . . . . . . . . . . . . . 41
8.2. Payment of Taxes, Etc. . . . . . . . . . . . . . . . . . . . . . . 42
8.3. Maintenance of Insurance . . . . . . . . . . . . . . . . . . . . . 42
8.4. Preservation of Corporate Existence, Etc. . . . . . . . . . . . . 42
8.5. Books and Access . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.6. Maintenance of Properties, Etc. . . . . . . . . . . . . . . . . . 43
8.7. Application of Proceeds . . . . . . . . . . . . . . . . . . . . . 43
8.8. Financial Statements of Viacom Inc . . . . . . . . . . . . . . . . 43
8.9. Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE IX
NEGATIVE COVENANTS
9.1. Liens, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.2. Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.3. Substantial Asset Sale . . . . . . . . . . . . . . . . . . . . . . 48
9.4. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . 48
9.5. Margin Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.6. Subsidiary Indebtedness . . . . . . . . . . . . . . . . . . . . . 48
9.7. Other Restrictions on Indebtedness . . . . . . . . . . . . . . . . 49
ARTICLE X
EVENTS OF DEFAULT
10.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE XI
THE MANAGING AGENTS AND THE FACILITY AGENTS
11.1. Authorization and Action . . . . . . . . . . . . . . . . . . . . 52
11.2. Managing Agents' and Facility Agents'
Reliance, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 53
11.3. The Bank of New York, Citibank, N.A.,
Morgan Guaranty Trust Company of
New York, Bank of America NT&SA and
Their Affiliates . . . . . . . . . . . . . . . . . . . . . . . 53
11.4. Bank Credit Decision . . . . . . . . . . . . . . . . . . . . . . 54
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11.5. Determinations Under Sections 4.1, 4.2 and 4.3 . . . . . . . . . 54
11.6. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . 55
11.7. Successor Facility Agents . . . . . . . . . . . . . . . . . . . . 55
ARTICLE XII
MISCELLANEOUS
12.1. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 56
12.2. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 57
12.3. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . 57
12.4. Costs; Expenses; Indemnities . . . . . . . . . . . . . . . . . . 58
12.5. Right of Set-Off . . . . . . . . . . . . . . . . . . . . . . . . 59
12.6. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . 60
12.7. Assignments and Participations;
Additional Banks . . . . . . . . . . . . . . . . . . . . . . . 61
12.8. GOVERNING LAW; SEVERABILITY . . . . . . . . . . . . . . . . . . . 63
12.9. SUBMISSION TO JURISDICTION; WAIVER
OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . 63
12.10. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . 64
12.11. Section Titles . . . . . . . . . . . . . . . . . . . . . . . . . 65
12.12. Execution in Counterparts . . . . . . . . . . . . . . . . . . . 65
12.13. Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SCHEDULES
Schedule I - List of Lending Offices
Schedule II - Commitments
Schedule III - Transaction Documents
Schedule 1.1 - Guarantees in Effect on the Date
of this Agreement
Schedule 9.1(a) - Satellite Transponder Liens
Schedule 9.1(b) - Liens
Schedule 9.6 - Subsidiary Indebtedness
EXHIBITS
Exhibit A - Notice of Borrowing
Exhibit B - Notice of Conversion or Continuation
Exhibit C - Form of Opinion of Michael D. Fricklas
Exhibit D - Form of Assignment and Acceptance
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FILM FINANCE CREDIT AGREEMENT, dated as of May 10, 1996, among
VIACOM FILM FUNDING COMPANY INC., a [Delaware corporation] (the "Borrower"),
VIACOM INC., a Delaware corporation, and VIACOM INTERNATIONAL INC., a
Delaware corporation, as Guarantors (each a "Guarantor") the Banks 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, and the Banks identified as Agents on
the signature pages hereof, as Agents.
W I T N E S E T H:
- - - - - - - - -
WHEREAS, the Borrower has requested that the Banks provide senior
debt financing for the funding of the production, distribution and
acquisition of motion pictures or other programming rights 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.
"Amendment" means Amendment No. 2 to the September Agreement, dated
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as of November 17, 1995.
"APB 16 and 17" means Accounting Principles Board Opinions Nos. 16
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and 17 as in effect at the time that any addition or adjustment required
thereunder is to be made to the financial statements of a Person.
"Applicable Eurodollar Rate Margin" shall mean on any date the
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percentage set forth below opposite the Credit Rating applicable on such
date:
CREDIT RATING MARGIN
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BBB-/Baa3 or better .375%
BB+/Ba1 or lower .625%
; provided, however, that if the ratings assigned by S&P and Moody's shall
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differ, the Credit Rating shall be the rating which is the higher rating.
"Applicable Lending Office" means, with respect to each Bank, its
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Domestic Lending Office in the case of a Base Rate Loan, and its Eurodollar
Lending Office in the case of a Eurodollar Rate Loan.
"Arranger" means each of The Bank of New York, Citicorp Securities,
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Inc., JP Morgan Securities Inc. and BA Securities Inc.
"Banks" means the lenders listed on the signature pages hereof, and
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such other lenders as may become parties hereto from time to time pursuant to
Section 12.7.
"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
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(b) the Federal Funds Rate for such day plus 1/2 of one percent
per annum.
"Base Rate Loan" means any Loan or portion thereof that bears
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interest with reference to the Base Rate.
"Blockbuster" means Blockbuster Entertainment Corporation, a
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Delaware Corporation that merged into Viacom Inc.
"Borrower" has the meaning specified in the recitals hereof.
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"Borrowing" means a borrowing by the Borrower consisting of Loans
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made on the same day by the Banks ratably according to their respective
Commitments.
"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.
"Cable Transaction" has the meaning specified in the Amendment.
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"Cable Transaction Effective Date" has the meaning specified in the
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Amendment.
"Capitalized Lease" means, as applied to any Person, any lease of
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property by such Person as lessee which should be capitalized on a balance
sheet of such Person prepared in accordance with GAAP, other than leases of
satellite transponders.
"Cash Equivalents" means (i) securities with maturities of one year
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or less from the date of acquisition issued or fully guaranteed or insured by
the United States government or any agency thereof, (ii) certificates of
deposit, time deposits, bankers' acceptances and repurchase agreements of any
commercial bank rated at least A-3 by Moody's, (iii) negotiable Eurodollar
certificates of deposit and time deposits issued by a London affiliate of a
U.S. commercial bank or Canadian bank qualified under the preceding clause
(ii) if such affiliate's long-term debt is rated A-3 or better by Moody's and
(iv) commercial paper of an issuer rated at least A-1+ by S&P or P-1 by
Moody's, or carrying an equivalent rating by a nationally recognized rating
agency, if both of the two named rating agencies cease publishing ratings of
investments.
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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" of any Person means any unsecured promissory
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note of such Person with a maturity at the time of issuance not exceeding
nine months, exclusive of days of grace, issued by such Person pursuant to a
commercial paper program.
"Commitment" has the meaning specified in Section 2.1(a).
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"Commitment Fee" has the meaning specified in Section 3.4(a).
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"Commitment Termination Date" means the earlier of (i) May 9, 1997
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and (ii) the date of the earlier termination in whole of all of the
Commitments pursuant to the terms hereof, including pursuant to Section 10.1.
"Contaminant" means any waste, pollutant, hazardous substance,
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toxic substance, hazardous waste, special waste, petroleum or petroleum
derived substance or waste, or any constituent of such substance or waste,
including any substance regulated under any Environmental Law.
"Credit Rating" means the most recent rating of the long-term
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senior unsecured debt of Viacom Inc. 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 Borrower and the Administrative Agent.
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"Earnings from Operations" means, at any time, for Viacom Inc. and
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its Subsidiaries, revenues plus equity in earnings of affiliated companies,
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less (i) operating expenses, (ii) selling expenses, (iii) general and
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administrative expenses and (iv) depreciation and amortization expenses.
"EBIDT" means, at any time, the Earnings from Operations of Viacom
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Inc. and its Subsidiaries on a consolidated basis as set forth in the
statement of operations of Viacom Inc. and its Subsidiaries for the
immediately preceding four Fiscal Quarters for which financial statements
have been delivered to the Banks pursuant to Section 8.8 of this Agreement
(adjusted to account for material dispositions during such four Fiscal
Quarters), plus (to the extent previously deducted) (a) the sum of the
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following expenses of Viacom Inc. and its Subsidiaries for such period:
(i) depreciation expense; (ii) amortization expense (including all
amortization expenses recognized in accordance with APB 16 and 17 but
excluding (A) all other amortization of programming, production and pre-
publication costs and (B) amortization of videocassettes)"; (iii) expenses
accrued under the Incentive Plans for such period; (iv) non-recurring
expenses and non-cash charges incurred in connection with the "Tender Offer"
or the "Merger" (each as defined in the July Agreements) or the Merger, (v)
in the event that, during such period, Viacom Inc. or any of its Subsidiaries
acquires all or substantially all of the assets or Equity of any other Person
or any Equity in any other Person that is reported on an equity basis, the
EBIDT of such Person, as determined in accordance with the terms of this
definition, shall be included in the EBIDT of Viacom Inc. for all Fiscal
Quarters during such period; (vi) all other non-cash charges; and (vii) with
respect to the calculation of EBIDT through September 30, 1994, $48.35
million of expenses associated with programming write-offs at USA Networks
less (b) the proportional EBIDT of the interests held by any other Person in
entities fully consolidated with Viacom Inc. and its Subsidiaries, as
determined in accordance with the terms of this definition. For the purposes
of Section 7.2 only, EBIDT shall be calculated on an actual historical basis
without taking into account acquisitions or dispositions during any relevant
calculation period.
"Effective Date" means the earliest date on which all of the
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conditions precedent specified in Section 4.1 shall have been satisfied or
waived.
"Environmental Law" means the Comprehensive Environmental Response,
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Compensation, and Liability Act (42
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U.S.C. Sec. 9601 et seq.), the Hazardous Material Transportation Act (49
-- ---
U.S.C. Sec. 1801 et seq.), the Resource Conservation and Recovery Act (42
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U.S.C. Sec. 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C.
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Sec. 1251 et seq.), the Clean Air Act (42 U.S.C. Sec. 7401 et seq.), the Toxic
-- --- -- ---
Substances Control Act (15 U.S.C. Sec. 2601 et seq.), and the Occupational
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Safety and Health Act (29 U.S.C. Sec. 651 et seq.), in each case as amended or
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supplemented from time to time, and any analogous future federal or present or
future state or local statutes, including, without limitation, transfer of
ownership notification statutes such as the New Jersey Environmental Cleanup
Responsibility Act (N.J. Stat. Ann. Sec. 13:1K-6 et seq.) and the Connecticut
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Industrial Transfer Law of 1985 (Conn. Gen. Stat. Sec. 22a-134 et seq.) and
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the regulations promulgated pursuant thereto.
"Environmental Liabilities and Costs" means, as to any Person, all
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liabilities, obligations, responsibilities, Remedial Actions, losses,
damages, punitive damages, consequential damages, treble damages, costs and
expenses (including, without limitation, all reasonable fees, disbursements
and expenses of counsel, expert and consulting fees, and costs of
investigation and feasibility studies), fines, penalties, sanctions and
interest incurred as a result of any claim or demand, by any Person, whether
based in contract, tort, implied or express warranty, strict liability, any
criminal or civil statute, including any Environmental Law, Permit, order or
agreement with any Governmental Authority or other Person, arising from
environmental, health or safety conditions, or the Release or threatened
Release of a Contaminant into the environment, resulting from the past,
present or future operations of such Person or its Subsidiaries.
"Environmental Lien" means any Lien in favor of any Governmental
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Authority for Environmental Liabilities and Costs.
"Equity" means all shares, options, equity interests, general or
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limited partnership interests, joint venture interests or participations or
other equivalents (regardless of how designated) of or in a corporation,
partnership or other entity, whether voting or non-voting, and including,
without limitation, common stock, preferred stock, purchase rights, warrants
or options for any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974
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(or any successor legislation thereto) and the rules and regulations
promulgated thereunder, as amended from time to time.
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"ERISA Affiliate" shall mean a corporation, partnership or other
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entity which is considered one employer with Viacom Inc. under Section 4001
of ERISA or Section 414 of the Code.
"ERISA Event" means (i) a Reportable Event with respect to a Title
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IV Plan; (ii) the withdrawal of Viacom Inc., any of its Subsidiaries or any
ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during
a plan year in which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (iii) the filing of a notice of intent to terminate a
Title IV Plan or the treatment of a plan amendment as a termination under
Section 4041 of ERISA; or (iv) the institution of proceedings to terminate a
Title IV Plan or Multiemployer Plan by the PBGC.
"Eurocurrency Liabilities" has the meaning specified in Regulation D.
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"Eurodollar Lending Office" means, with respect to any Bank, the
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office of such Bank specified as its "Eurodollar Lending Office" opposite its
name on Schedule I (or, if no such office is specified, its Domestic Lending
Office) or such other office of such Bank as such Bank may from time to time
specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period, the rate of
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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.
"Eurodollar Rate Loan" means any Loan or portion thereof that bears
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interest at a rate determined with reference to the Eurodollar Rate.
"Eurodollar Rate Reserve Percentage" means, for any Bank for any
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Interest Period, the reserve percentage applicable during such Interest
Period (or if more than one
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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 10.1.
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"Exchange Offer" has the meaning specified in the Amendment.
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"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 Viacom Inc. or any of its
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Subsidiaries, any radio, television or other license, Permit, certificate of
compliance or authorization issued by the FCC and required for the operation
of its respective radio and television broadcast stations and cable
television systems.
"Federal Funds Rate" means, for any day, a fluctuating interest
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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 10.1(g).
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"Fiscal Quarter" means any three month period ending March 31, June
--------------
30, September 30 or December 31 of any Fiscal Year, or such other fiscal
quarter end date as may be determined by Viacom Inc.
-8-
"Fiscal Year" means each twelve-month period ending December 31, or
-----------
such other fiscal year end date as may be determined by Viacom Inc.
"Franchise" means a franchise, authorization or right by contract
---------
to construct, own, operate or otherwise exploit any cable television facility
operated by Viacom Inc. or any of its Subsidiaries, granted by any
Governmental Authority.
"GAAP" means generally accepted accounting principles in the United
----
States of America as in effect from time to time and set forth in the rules,
regulations, opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and the statements
and pronouncements of the Financial Accounting Standards Board, or in such
other statements by such other entity as may be in general use by significant
segments of the accounting profession and which are applicable to the
circumstances as of the date of determination.
"GAAS" means generally accepted auditing standards in the United
----
States of America as in effect from time to time and set forth in the rules,
regulations, opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and the statements
and pronouncements of the Financial Accounting Standards Board, or in such
other statements by such other entity as may be in general use by significant
segments of the accounting profession and which are applicable to the
circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any state
----------------------
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantor" means each of Viacom Inc. and Viacom International.
---------
"Incentive Plans" means Viacom Inc.'s Long-Term Incentive Plan and
---------------
Long-Term Management Incentive Plan.
"Indebtedness" of any Person means at any date, without
------------
duplication, (i) all obligations of such Person for borrowed money
(including, without limitation, in the case of the Borrower, the obligations
of the Borrower for borrowed money under this Agreement), (ii) all
obligations of such Person evidenced by bonds, debentures, notes or
-9-
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 Inc. and its Subsidiaries shall not
--------
include (a) guarantees in existence on the date hereof of Indebtedness of
discontinued operations, and (b) guarantees of Indebtedness that are
identified on Schedule 1.1 to this Agreement and that arise from commitments
in existence at the date hereof (in each of cases (a) and (b), only if such
guarantees are not extended by Viacom Inc. or any of its Subsidiaries after
the date hereof or, in the case of any increase in commitments, only the
amount of the increase in such existing commitments shall be included in
Indebtedness) (vii) all obligations of such Person as issuer, customer or
account party under letters of credit or bankers' acceptances that are either
drawn or that back financial obligations that would otherwise be
Indebtedness; provided, however, that in each of the foregoing clauses
-------- -------
(i) through (vii), Indebtedness shall not include obligations (other than the
July Agreements and the September Agreement) 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
---------------------
12.4(b).
"Indemnified Person" has the meaning specified in Section 12.4(b).
------------------
"Initial Funding Date" means the date on which the conditions set
--------------------
forth in Sections 4.1, 4.2 and 4.3 are satisfied or waived and the initial
Loans are made hereunder.
-10-
"Interest Period" means, (a) in the case of Base Rate Loans, the
---------------
period commencing on the date such Loans are made or on the date of
conversion of such Loans from Eurodollar Rate Loans and ending on the last
day of each Fiscal Quarter, and (b) in the case of Eurodollar Rate Loans, (i)
initially, the period commencing on the date such Loans are made or on the
date of conversion of such Loans or portions thereof from Base Rate Loans and
ending one, two, three or six months thereafter, as selected by the Borrower
in its Notice of Borrowing or Notice of Conversion or Continuation given to
the Administrative Agent pursuant to Section 2.2 or 3.1, as the case may be,
and (ii) thereafter, if such Loans are renewed, in whole or in part, as Euro-
dollar 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 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 Commitment
Termination Date;
(iv) the Borrower may not select any Interest Period in respect of
Loans in an aggregate amount less than $5,000,000; and
(v) there shall be outstanding at any one time no more than 20
Interest Periods in the aggregate.
"IRS" means the Internal Revenue Service, or any successor thereto.
---
-11-
"July Agreements" means (i) the Credit Agreement, dated as of July
---------------
1, 1994, as amended from time to time, among Viacom Inc., the banks party
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
Administration Agent, J.P. Morgan Securities Inc. as the Syndication Agent,
the banks identified as Agents on the signature pages thereof and the banks
identified as Co-Agents on the signature pages thereof, as Co-Agents; and
(ii) the Subsidiary Facility.
"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 Parties" means the Borrower and each of the Guarantors.
------------
"Loans" means the loans made to the Borrower pursuant to Section 2.1.
-----
"Majority Banks" means, at any time, Banks and Lenders (as defined
--------------
in each of the September Agreement and each of the July Agreements) having at
least 51% of the aggregate Commitments under this Agreement, the September
Agreement and the July Agreements, taken together and voting as a single
group; provided, however, that for purposes of this definition, if the
-------- -------
Commitments under this Agreement, the September Agreement or either of the
July Agreements of any Bank or Lender shall have been terminated, the then
aggregate unpaid principal amount of Loans of such Bank or Lender thereunder
shall be deemed to be such Bank's or such Lender's Commitment under this
Agreement, the September Agreement or the July Agreements, 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.
-12-
"Material Adverse Effect" means a material adverse effect on the
-----------------------
business, financial condition, operations or Properties of Viacom Inc. and
its Subsidiaries taken as a whole.
"Material Credit Agreement Change" means a change that has
--------------------------------
materially adversely affected or would materially adversely affect the
legality, validity or enforceability of any payment obligation of the
Borrower, Viacom Inc. or Viacom International under this Agreement.
"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 Blockbuster with and into Viacom Inc.
------
with Viacom Inc. as the surviving corporation.
"Moody's" means Moody's Investors Service, Inc.
-------
"Multiemployer Plan" means a multiemployer plan, as defined in
------------------
Section 4001(a)(3) of ERISA, to which Viacom Inc., any of its Subsidiaries or
any ERISA Affiliate is making, is obligated to make, has made or been
obligated to make, contributions on behalf of participants who are or were
employed by any of them.
"NAI" means National Amusements, Inc., a Maryland corporation.
---
"Net Worth" means, at any time, as to Viacom Inc. and its
---------
Subsidiaries on a consolidated basis (determined in accordance with GAAP),
the excess of total assets over (i) total liabilities as shown on Viacom
Inc.'s then most recent consolidated balance sheet and (ii) preferred stock
that is either exchangeable into debt or is non-perpetual.
"Non Cable Businesses" has the meaning specified in the Amendment.
--------------------
"Notice of Assignment and Acceptance" has the meaning specified in
-----------------------------------
Section 12.7(a).
"Notice of Borrowing" means a notice of the Borrower substantially
-------------------
in the form of Exhibit A hereto specifying therein (i) the date of the
proposed Borrowing, (ii) the aggregate amount of such proposed Borrowing,
(iii) the amount thereof, if any, requested to be Eurodollar
-13-
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.
"Obligations" has the meaning specified in Section 5.1.
-----------
"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
Viacom Inc., any of its Subsidiaries or any ERISA Affiliate now or in the
future maintains, contributes to or has an obligation to contribute to on
behalf of participants who are or were employed by any of them.
"Permit" means any permit, approval, authorization, license,
------
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.
"Person" means an individual, partnership, corporation (including a
------
business trust), joint stock 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 Viacom Inc. or an
ERISA Affiliate.
"Property" means any interest in any kind of property or asset,
--------
whether real, personal or mixed, and whether tangible or intangible,
including, without limitation, the right to use, transmit, display, license
or otherwise temporarily or permanently benefit from the possession of,
control of or access to any film, television program, trademark, trade name,
copyright, service mark or any other type of intellectual or intangible
property.
"Qualified Plan" means an employee pension benefit plan, as defined
--------------
in Section 3(2) of ERISA, which is intended to be tax-qualified under Section
401(a) of the Code, and which Viacom Inc., any of its Subsidiaries or any
ERISA Affiliate now or in the future maintains, contributes to or has an
obligation to contribute to on behalf of participants who are or were
employed by any of them.
-14-
"Ratable Portion" means, with respect to any Bank, the percentage
---------------
obtained by dividing the amount of such Bank's Commitment by the aggregate
amount of Commitments of all the Banks.
"Reference Banks" means The Bank of New York, Citibank, N.A.,
---------------
Morgan Guaranty Trust Company of New York and the Bank of America NT&SA.
"Register" has the meaning specified in Section 12.7(g) hereof.
--------
"Regulation D" means Regulation D of the Board of Governors of the
------------
Federal Reserve System (or any successor thereto), as in effect from time to
time, or any successor thereto.
"Regulation T" means Regulation T of the Board of Governors of the
------------
Federal Reserve System (or any successor thereto), as in effect from time to
time, or any successor thereto.
"Regulation U" means Regulation U of the Board of Governors of the
------------
Federal Reserve System (or any successor thereto), as in effect from time to
time, or any successor thereto.
"Regulation X" means Regulation X of the Board of Governors of the
------------
Federal Reserve System (or any successor thereto), as in effect from time to
time, or any successor thereto.
"Release" means, as to any Person, any release, spill, emission,
-------
leaking, pumping, injection, deposit, disposal, discharge, disbursal,
leaching or migration into the indoor or outdoor environment or into or out
of any property owned by such Person, including the movement of Contaminants
through or in the air, soil, surface water, ground water or property.
"Remedial Action" means all actions required to (i) clean up,
---------------
remove, treat or in any other way address Contaminants in the indoor or
outdoor environment, (ii) prevent the Release or threat of Release or
minimize the further Release of Contaminants so they do not migrate or
endanger or threaten to endanger public health or welfare or the indoor or
outdoor environment, or (iii) perform pre-remedial studies and investigations
and post-remedial monitoring and care.
-15-
"Reportable Event" means any of the events described in Section
----------------
4043(b)(1), (2), (3), (5), (6), (8) or (9) of ERISA.
"Requirements of Law" means all federal, state and local laws,
-------------------
rules, regulations, orders, decrees or other determinations of an arbitrator,
court or other Governmental Authority, including the requirements of ERISA
and Environmental Law.
"Responsible Financial Officer" means, as to any Person, the chief
-----------------------------
financial officer, treasurer, assistant treasurer, controller, secretary,
assistant secretary or other officer 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 documents
and certificates and otherwise act on behalf of such Person in connection
with financial matters arising under this Agreement.
"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.
"S&P" means Standard & Poor's Ratings Group.
---
"September Agreement" means the Credit Agreement, dated as of
-------------------
September 29, 1994, as amended from time to time, among Viacom Inc., the
banks party 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 Administration Agent, J.P. Morgan Securities Inc. as the
Syndication Agent and the banks identified as Agents on the signature pages
thereof, as Agents.
"Single-Employer Plan" shall mean a single-employer plan as defined
--------------------
in section 4001(a)(15) of ERISA which is subject to the provisions of Title
IV of ERISA.
"Subsidiary" means, with respect to any Person, any corporation,
----------
partnership or other business entity of which more than 50% of the
outstanding Equity having ordinary voting power to elect a majority of the
board of directors of such entity (irrespective of whether, at the time,
Equity of any other class or classes of such entity
-16-
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 Facility" means the Credit Agreement, dated as of July
-------------------
1, 1994, as amended from time to time, among Viacom International, Viacom
Cablevision of Dayton, Inc., WNYT Inc., WMZQ Inc. and WVIT Inc., each a
Delaware corporation and an indirect wholly owned Subsidiary of Viacom Inc.,
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 Documentation Agent, Citibank,
N.A., as the Administrative Agent, JP Morgan Securities Inc. as the
Syndication Agent, the banks identified as Agents on the signature pages
thereof, as Agents, and the banks identified as Co-Agents on the signature
pages thereof, as Co-Agents.
"Syndication Agent" means JP Morgan Securities Inc. in its capacity
-----------------
as the Syndication Agent, or any successor in such capacity.
"Tax Affiliate" means, as to any Person, (i) any Subsidiary of such
-------------
Person, or (ii) any Affiliate of such Person with which such Person files or
is required to file consolidated, combined or unitary tax returns.
"Tax Sharing Agreement" means the Income Tax Agreement, dated as of
---------------------
August 15, 1987, as amended, among NAI, Viacom Inc. and Viacom International.
"Title IV Plan" means a Pension Plan, other than a Multiemployer
-------------
Plan, which is covered by Title IV of ERISA.
"Total Cash Interest and Preferred Dividends" means, for any
-------------------------------------------
period, the sum of the following amounts: (i) the cash interest expense
incurred by Viacom Inc. and its Subsidiaries during the preceding four Fiscal
Quarters with respect to the aggregate amount of all Indebtedness outstanding
during such period plus (ii) the cash dividends paid by Viacom Inc. and its
----
Subsidiaries to Persons other than Viacom Inc. and its wholly owned
Subsidiaries during such four Fiscal Quarters with respect to preferred
stock.
"Total Debt" of Viacom Inc. and its Subsidiaries means, on any
----------
date, the total outstanding Indebtedness of Viacom Inc. and its Subsidiaries
on a consolidated basis; provided that for purposes of calculating the Total
--------
Leverage
-17-
Ratio, Total Debt shall be reduced by: (i) 75% of cash, Cash Equivalents and
short-term investments held by Viacom Inc. and its Subsidiaries on a
consolidated basis at June 30, 1996 and (ii) 65% of such amounts on any date
thereafter.
"Total Leverage Ratio" means the consolidated ratio of Total Debt
--------------------
to EBIDT.
"Transaction Documents" means the documents listed in Schedule III.
---------------------
"Viacom Inc." means Viacom Inc., a Delaware corporation and the
-----------
indirect parent corporation of the Borrower.
"Viacom International" means Viacom International Inc., a Delaware
--------------------
corporation and a wholly owned subsidiary of Viacom Inc. and the parent
corporation of the Borrower.
"VII Services" has the meaning specified in the
------------
Amendment.
"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.
The parties hereto agree, however, that in the event that any
change in accounting principles from those used in the preparation of the
financial statements referred to in Section 6.4(a) is hereafter occasioned by
the promulgation of rules, regulations, pronouncements, opinions and
statements by or required by the Financial Accounting Standards Board or
Accounting Principles Board or the American Institute of Certified Public
Accountants (or successors thereto or agencies with similar functions) and
such change materially affects the calculation of any component of any
financial covenant, standard or term contained in this Agreement, the
Managing Agents and Viacom Inc. shall negotiate in good faith to amend such
financial covenants, standards or terms found in this Agreement (other
-18-
than in respect of financial statements to be delivered hereunder) so that,
upon adoption of such changes, the criteria for evaluation of the Borrower's,
each of the Guarantors' and Viacom Inc.'s Subsidiaries' financial condition
shall be the same after such change as if such change had not been made;
provided, however, that (i) any such amendments shall not become effective
-------- -------
for purposes of this Agreement unless approved by the Majority Banks and
(ii) if Viacom Inc. and the Majority Banks cannot agree on such an amendment,
then the calculations under such financial covenants, standards or terms
shall continue to be computed without giving effect to such change in
accounting principles.
ARTICLE II
AMOUNT AND TERMS OF THE LOANS
2.1. The Loans. (a) The Loans. On the terms and subject to the
--------- ---------
conditions contained in this Agreement, each Bank severally agrees to make
Loans to the Borrower from time to time on any Business Day during the period
from the Initial Funding Date until the Commitment Termination Date in an
aggregate amount not to exceed at any time outstanding the amount set forth
opposite such Bank's name on Schedule II as its "Commitment" (as adjusted
from time to time by reason of assignments in accordance with the provisions
of Section 12.7 and as such amount may be reduced pursuant to Section 2.3,
such Bank's "Commitment"). Within the limits of each Bank's Commitment,
amounts borrowed under this Section 2.1(a) and prepaid pursuant to Section
2.5 may be reborrowed under this Section 2.1(a).
(b) Evidence of Debt. (i) Each Bank shall maintain in accordance
----------------
with its usual practice an account or accounts evidencing the Indebtedness to
such Bank resulting from each Loan made by such Bank to the Borrower from
time to time, including the amounts of principal and interest payable and
paid to such Bank from time to time hereunder.
(ii) The Register maintained by the Administrative Agent pursuant
to Section 12.7(g) shall include a "Loan contract control account" for each
Bank, in which account shall be recorded (A) the date and amount of each
Borrowing hereunder, (B) the amount and type of each Bank's Loan comprising
such Borrowing and any Interest Period applicable thereto, (C) the amount of
any principal or interest due and payable or to become due and payable from
the Borrower to each Bank with respect to each such Loan hereunder and (D)
the amount of any sum received by the
-19-
Administrative Agent from the Borrower with respect to such Loans hereunder
and each Bank's Ratable Portion thereof.
(iii) The entries made in the Register in respect of the Loans
shall be conclusive and binding for all purposes, absent manifest error.
2.2. Making the Loans. (a) Each Borrowing shall be made upon
----------------
receipt of a Notice of Borrowing, given by the Borrower to the Administrative
Agent not later than (i) 9:30 A.M. (New York City time) on the Business Day
of the proposed Borrowing, in the event such Borrowing is to be comprised of
Base Rate Loans, and (ii) 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Borrowing, in the event such
Borrowing is to be comprised of Eurodollar Rate Loans.
(b) The Administrative Agent shall give to each Bank prompt notice
(but in any event on the same day) of its receipt of a Notice of Borrowing in
respect of Loans and, if Eurodollar Rate Loans are properly requested in such
Notice of Borrowing, upon its determination thereof, notice of the applicable
interest rate under Section 3.3(b). Each Bank shall, before 11:00 A.M. (or
in the case of a Borrowing being made on the same day, before 12:00 noon)
(New York City time) on the date of the proposed Borrowing, make available
for the account of its Applicable Lending Office to the Administrative Agent
at its address referred to in Section 12.2, in immediately available funds,
such Bank's Ratable Portion of such proposed 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 Borrower at the Administrative Agent's
aforesaid address.
(c) Each Borrowing pursuant to this Section 2.2 shall be in an
aggregate amount of not less than $5,000,000 or an integral multiple of
$5,000,000 in excess thereof.
(d) Each Notice of Borrowing pursuant to this Section 2.2 shall be
irrevocable and binding on the Borrower. In the case of any proposed
Borrowing comprised of Eurodollar Rate Loans, the Borrower shall indemnify
each Bank against any loss, cost or expense incurred by such Bank as a result
of any failure to fulfill on or before the date specified in such Notice of
Borrowing for such proposed Borrowing the applicable conditions set forth in
Article 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
-20-
failure), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Bank to fund any
Eurodollar Rate Loan to be made by such Bank as part of such proposed
Borrowing when such Eurodollar Rate Loan, as a result of such failure, is not
made on such date.
(e) Unless the Administrative Agent shall have received notice
from a Bank prior to the date of any proposed 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 Borrowing, the Administrative Agent
may assume that such Bank has made such Ratable Portion available to the
Administrative Agent on the date of such Borrowing in accordance with this
Section 2.2 and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Bank shall not have so made such
Ratable Portion available to the Administrative Agent and the Administrative
Agent has so made available such amount, such Bank and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount
is repaid to the Administrative Agent, at (i) in the case of the Borrower,
the interest rate applicable at the time to the Loan comprising such
Borrowing and (ii) in the case of such Bank, the Federal Funds Rate. If such
Bank shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Loan as part of such Borrowing
for purposes of this Agreement. If the Borrower shall repay to the
Administrative Agent such corresponding amount, such payment shall not
relieve such Bank of any obligation it may have to the Borrower hereunder.
(f) The failure of any Bank to make the Loan to be made by it as
part of any Borrowing pursuant to this Section 2.2 shall not relieve any
other Bank of its obligation, if any, hereunder to make its Loan on the date
of such Borrowing, but no Bank shall be responsible for the failure of any
other Bank to make the Loan to be made by such other Bank on the date of any
such Borrowing.
2.3. Termination or Reduction of the Loan Commitments. (a)
------------------------------------------------
Optional Reductions. The Borrower shall have the right, upon at least three
-------------------
Business Days' prior notice to the Administrative Agent, to terminate in
whole or permanently reduce ratably in part the unused portions of the
respective Commitments of the Banks; provided, however,
-------- -------
-21-
that each partial reduction shall be in the aggregate amount of not less than
$5,000,000 or an integral multiple of $5,000,000 in excess thereof.
(b) Payment of Commitment Fee. Simultaneously with any
-------------------------
termination or reduction of the Commitments pursuant to this Section 2.3, the
Borrower shall pay to the Administrative Agent for the account of each Bank
the Commitment Fee, if any, on the amount of the Commitments so terminated or
reduced and owed to such Bank through the date of such termination or
reduction.
2.4. Repayment of the Loans. The Borrower shall repay the
----------------------
outstanding principal amount of the Loans (together with all accrued but
unpaid interest thereon) in full on the Commitment Termination Date.
2.5. Optional Prepayments of the Loans. The Borrower may, upon at
---------------------------------
least three Business Days' prior notice (or at least one Business Day's prior
notice in the case of Base Rate Loans), to the Administrative Agent stating
the proposed date and aggregate principal amount of the prepayment, and if
such notice is given the Borrower shall, prepay the outstanding principal
amount of the Loans comprising a part of the same Borrowing, in whole or
ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however, that the
-------- -------
Borrower shall indemnify the Banks pursuant to Section 12.4(c) in the event
that any prepayment of any Eurodollar Rate Loans shall be made on a day other
than the last day of an Interest Period for such Loans; and provided further,
-------- -------
however, that each partial prepayment permitted under this Section 2.5 shall
-------
be in an aggregate amount not less than $5,000,000 or integral multiples of
$1,000,000 in excess thereof.
ARTICLE III
CONVERSION, INTEREST, PAYMENTS, FEES, ETC.
3.1. Conversion/Continuation Option. The Borrower may elect
------------------------------
(i) at any time to convert Base Rate Loans or any portion thereof to
Eurodollar Rate Loans or (ii) at the end of any Interest Period with respect
thereto, to convert Eurodollar Rate Loans or any portion thereof into Base
Rate Loans, or to continue such Eurodollar Rate Loans or any portion thereof
as Eurodollar Rate Loans for an additional Interest Period; provided,
--------
however, that the aggregate of the Eurodollar Rate Loans of the Borrower so
-------
converted or so continued for each Interest Period must be
-22-
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 B
hereto (a "Notice of Conversion or Continuation") and shall be made by giving
the Administrative Agent at least one Business Day's, in the case of a
conversion to a Base Rate Loan, and three Business Days', in the case of a
conversion to or a continuation of a Eurodollar Rate Loan, prior written
notice thereof specifying (A) the amount and type of conversion or
continuation, (B) in the case of a conversion to or a continuation of
Eurodollar Rate Loans, the Interest Period therefor, and (C) in the case of a
conversion the date of conversion (which date shall be a Business Day and, if
a conversion from a Eurodollar Rate Loan, shall also be the last day of the
Interest Period therefor). The Administrative Agent shall promptly (but in
any event on the same day) notify each Bank of its receipt of a Notice of
Conversion or Continuation and of the contents thereof. Notwithstanding the
foregoing, no conversion in whole or in part of Base Rate Loans to Eurodollar
Rate Loans, and no continuation in whole or in part of Eurodollar Rate Loans
upon the expiration of any Interest Period therefor, shall be permitted at
any time at which an Event of Default shall have occurred and be continuing.
If, within the time period required under the terms of this Section 3.1, the
Administrative Agent does not receive a Notice of Conversion or Continuation
from the Borrower containing an election to continue all or any portion of
the Eurodollar Rate Loans for an additional Interest Period or to convert all
or any portion of such Loans, then, upon the expiration of the Interest
Period therefor, such Loans or the portions thereof for which an election to
continue or convert has not been made will be automatically converted to Base
Rate Loans. Each Notice of Conversion or Continuation shall be irrevocable.
3.2. Interest. The Borrower shall pay interest on the unpaid
--------
principal amount of each Loan from the date thereof until the principal
amount thereof shall be paid in full, at the following rates per annum:
(a) Base Rate Loans. For Base Rate Loans, at a rate per annum
---------------
equal at all times to the Base Rate in effect from time to time, payable
quarterly in arrears on the last day of each September, December, March
and June, on the Commitment Termination Date and on the date any Base
Rate Loan is converted or paid in full.
(b) Eurodollar Rate Loans. For Eurodollar Rate Loans, at a rate
---------------------
per annum equal at all times during the applicable Interest Period for
each Eurodollar Rate
-23-
Loan to the sum of the Eurodollar Rate for such Interest Period plus the
Applicable Eurodollar Rate Margin, payable in arrears (i) on the last
day of such Interest Period and (ii) if such Interest Period has a
duration of more than three months, on each day during such Interest
Period that occurs every three months from the first day of such
Interest Period.
(c) Default Rate of Interest. If any amount of principal of any
------------------------
Loan is not paid when due, whether at stated maturity, by acceleration
or otherwise, the interest rate applicable to any such amount shall be
increased by 2.00% per annum, payable on demand, and if any interest,
fee or other amount payable hereunder is not paid when due, such amount
shall bear interest at a rate per annum equal at all times to the Base
Rate in effect from time to time plus 2% per annum payable on demand.
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 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
Borrower 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, the Banks holding
the majority in principal amount of such Loans determine in good faith and
notify the Administrative Agent that the Eurodollar Rate for any Interest
Period will not adequately reflect the cost to such Banks of making such
Loans or funding or maintaining their respective Eurodollar Rate Loans for
such Interest Period, the Administrative
-24-
Agent shall forthwith so notify the Borrower and the Banks, whereupon
(i) each Eurodollar Rate Loan will automatically, on the last day
of the then existing Interest Period therefor, convert into a Base Rate
Loan unless the Banks holding the majority in principal amount of such
Loans notify the Administrative Agent that the circumstances causing
such conversion no longer exist and the Borrower delivers a timely
Notice of Conversion or Continuation with respect to such Loans; and
(ii) the obligations of the Banks to make Eurodollar Rate Loans or
to convert Loans into Eurodollar Rate Loans shall be suspended until the
Administrative Agent shall notify the Borrower and the Banks that the
circumstances causing such suspension no longer exist.
3.4. Fees. (a) The Borrower will pay on the last day of each
----
Fiscal Quarter to each of the Banks quarterly in arrears a fee (the
"Commitment Fee") accruing from the Effective Date until the Commitment
Termination Date, on such Bank's aggregate average daily unused Commitment as
in effect from time to time at a rate of .125%.
(b) The Borrower has agreed to pay to the Banks, Managing Agents,
Agents and Arrangers certain other fees which are earned on the Effective
Date and payable on the Initial Funding Date or 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, then (A)
such Bank shall, as soon as such Bank becomes aware of such increased cost,
but in any event not later than 60 days after such increased cost was
incurred, deliver to the Borrower and the Administrative Agent a certificate
stating (1) the actual amount of such increased cost incurred by such Bank
and (2) that it is such Bank's customary practice, from and after the date of
this Agreement, to charge its borrowers for increased costs
-25-
incurred by it; (B) the Borrower shall, within 30 days after its receipt of
such certificate, at its sole option, either (1) pay to the Administrative
Agent for the account of such Bank amounts sufficient to compensate such Bank
for the increased cost incurred by it as set forth in the certificate
referred to above or (2) replace such Bank in accordance with the provisions
of Section 3.10, provided that if the Borrower does not exercise the option
--------
specified in clause (2) above within 30 days after receipt of the certificate
referred to above, then (x) such Bank shall deliver to the Borrower and the
Administrative Agent a second certificate stating the increased cost incurred
by such Bank and (y) the Borrower shall promptly upon receipt of such second
certificate pay to the Administrative Agent for the account of such Bank
amounts sufficient to compensate such Bank for such increased cost; and (C)
such Bank shall use its reasonable best efforts to designate another of its
then existing offices as its Applicable Lending Office if the making of such
designation would, without any detrimental effect to such Bank, avoid the
need for, or reduce the amount of, future increased costs which are probable
of being incurred by such Bank. The amount of increased costs payable by the
Borrower to any Bank as stated in any such certificate delivered to the
Borrower and the Administrative Agent pursuant to the provisions of this
Section 3.5(a) shall be conclusive and binding for all purposes, absent
manifest error. In determining any such amount, such Bank may use reasonable
averaging and attribution methods. If the Borrower so notifies the
Administrative Agent within five Business Days after receipt of any
certificate delivered to the Borrower pursuant to the provisions of this
Section 3.5(a), the Borrower may either (x) prepay in full all Eurodollar
Rate Loans of such Bank 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
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, then (i) such Bank shall, within 60 days after the
end of any Interest Period with respect to any Eurodollar Rate Loan during
which such Bank was so required to maintain such reserves, deliver to the
Borrower and the Administrative Agent a certificate stating (A) that such
Bank was required to maintain reserves and as a result such Bank incurred
additional costs in connection with making Eurodollar Rate
-26-
Loans, (B) in reasonable detail, such Bank's computations of the amount of
additional interest payable by the Borrower pursuant to the provisions of
this Section 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) the Borrower shall, promptly upon
receipt of any such certificate, pay to the Administrative Agent, for the
account of such Bank, additional interest on the unpaid principal amount of
each Eurodollar Rate Loan of such Bank outstanding during the Interest Period
with respect to which the above-referenced certificate was delivered to the
Borrower, at a rate per annum equal to the difference obtained by subtracting
(x) the Eurodollar Rate for such Interest Period from (y) the rate obtained
by dividing such Eurodollar Rate by a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage of such Bank for such Interest Period.
The amount of interest payable by the Borrower to any Bank as stated in any
certificate delivered to the Borrower and the Administrative Agent pursuant
to the provisions of this Section 3.5(b) shall be conclusive and binding for
all purposes, absent manifest error.
(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 or to continue to fund or maintain Eurodollar Rate
Loans, then, on notice thereof and demand therefor by such Bank to the
Borrower through the Administrative Agent, (i) the obligation of such Bank to
make or to continue Eurodollar Rate Loans and to convert Base Rate Loans into
Eurodollar Rate Loans shall be suspended until such Bank through the
Administrative Agent shall notify the Borrower that the circumstances causing
such suspension no longer exist and (ii) the Borrower shall forthwith prepay
in full all Eurodollar Rate Loans of such Bank then outstanding, together
with interest accrued thereon, unless the Borrower, within five Business Days
of such notice and demand, converts all Eurodollar Rate Loans of all Banks
then outstanding into Base Rate Loans in accordance with the notice periods
of Section 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
-27-
Lending Office if the making of such a designation would, without any
detrimental effect to such Bank, cause the making of Eurodollar Rate Loans to
not be subject to this Section 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 reducing the rate of return on
the capital of such Bank to a level below that which such Bank could have
achieved but for such adoption, change or compliance (taking into
consideration the policies of such Bank with respect to capital adequacy in
effect immediately before such adoption, change or compliance) and (x) such
reduction is as a consequence of the Commitment of, or the making, converting
or continuing of any Loans by, such Bank hereunder and (y) such reduction is
reasonably deemed by such Bank to be material, then (1) such Bank shall
deliver to the Borrower and the Administrative Agent a certificate stating
the reduction in the rate of return such Bank will in the future suffer as a
result of its Commitment or the making, converting or continuing any Loans by
it to the Borrower hereunder and (2) the Borrower shall, within 30 days after
its receipt of such certificate, at its sole option, either (A) pay to the
Administrative Agent for the account of such Bank from time to time as
specified by such Bank such amount as shall be sufficient to compensate such
Bank for such reduced return, or (B) replace such Bank in accordance with the
provisions of Section 3.10; provided, however, that if the Borrower does not
-------- -------
exercise the option specified in clause (B) above within 30 days after
receipt of the certificate referred to above, then (1) such Bank shall
deliver to the Borrower and the Administrative Agent a second certificate
stating the reduction in the rate of return of such Bank and (2) the Borrower
shall promptly pay, as specified by such Bank, to the Administrative Agent
for the account of such Bank amounts sufficient to compensate such Bank for
the reduction in its rate of return. The amount stated in any certificate
delivered to the Borrower pursuant to the provisions of this Section 3.7
shall be conclusive and binding for all pur-
-28-
poses, 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) The Borrower shall make each
-------------------------
payment payable by it hereunder not later than 11:00 A.M. (New York City
time) on the day when due, in Dollars, to the Administrative Agent at its
address referred to in Section 12.2 in immediately available funds without
set-off or counterclaim. The Administrative Agent will promptly thereafter
(but in any event on the same day) cause to be distributed like funds
relating to the payment of principal or interest or fees ratably (other than
amounts payable pursuant to Section 3.5, 3.6 or 3.7) to the Banks for the
account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Bank to such Bank
for the account of its Applicable Lending Office, in each case to be applied
in accordance with the terms of this Agreement. Payment received by the
Administrative Agent after 11:00 A.M. (New York City time) shall be deemed to
be received on the next Business Day; provided, however, that the Admin-
-------- -------
istrative Agent shall use its reasonable best efforts to invest any amounts
so received by the Administrative Agent in overnight investments satisfactory
to the Borrower, and any earnings on any such investments shall be for the
Borrower's account and may be credited against any interest payable hereunder
during such period.
(b) All computations of the Commitment Fee or of interest based on
the rate of interest specified in clause (a) of the definition of Base Rate
and of fees shall be made by the Administrative Agent on the basis of a year
of 365 or 366 days, as the case may be, and all computations of interest
based on the Eurodollar Rate or the Federal Funds Rate shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest and fees are payable. All
computations of the Commitment Fee shall be based on the aggregate average
daily unused Commitment of each Bank. Each determination by the
Administrative Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in
-29-
the computation of payment of interest or fees, as the case may be.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each Bank
on such due date an amount equal to the amount then due such Bank. If and to
the extent that the Borrower shall not have so made such payment in full to
the Administrative Agent, each Bank shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to
such Bank until the date such Bank repays such amount to the Administrative
Agent, at the Federal Funds Rate.
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 Loan made by it (other than pursuant
to Section 3.5, 3.6 or 3.7) in excess of its Ratable Portion of payments on
account of the Loans obtained by all the Banks, such Bank shall forthwith
purchase from the other Banks such participations in the Loans made by them
as shall be necessary to cause such purchasing Bank to share the excess
payment ratably with each of them; provided, however, that if all or any
-------- -------
portion of such excess payment is thereafter recovered from such purchasing
Bank, such purchase from each Bank shall be rescinded and each such Bank
shall repay to the purchasing Bank the purchase price to the extent of such
recovery together with an amount equal to such Bank's ratable share
(according to the proportion of (i) the amount of such Bank's required
repayment to (ii) the total amount so recovered from the purchasing Bank) of
any interest or other amount paid or payable by the purchasing Bank in
respect of the total amount so recovered. The Borrower agrees that any Bank
so purchasing a participation from another Bank pursuant to this Section 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 the Borrower in the
amount of such participation.
3.10. Replacement Banks. Upon the election of the Borrower to
-----------------
replace any Bank pursuant to the provisions of Section 3.5(a)(B)(2) or
3.7(2)(B), the Borrower shall
-30-
provide to the Administrative Agent a notice setting forth the replacement
Bank or Banks, and the Bank being so replaced shall take all actions as may
be necessary to transfer to such replacement Bank or Banks all of the rights
and obligations of such Bank hereunder and such replacement Bank or Banks
shall pay to the Bank being so replaced the amount outstanding of the Loan
made by such Bank hereunder (with appropriate provisions for other amounts
due to the Bank being replaced), all as though such replacement Bank or Banks
were an assignee or assignees of such Bank to which such Bank were making an
assignment in accordance with the provisions of Section 12.7.
ARTICLE IV
CONDITIONS OF LENDING
4.1. Conditions Precedent to the Making of the Initial Loans. The
-------------------------------------------------------
making of the initial Loans hereunder is subject to satisfaction of the
conditions precedent that the Managing Agents shall have received the
following, in form and substance satisfactory to the Managing Agents, and in
sufficient copies for each Bank that requests a copy:
(a) Certified copies of (i) the resolutions of the Board of
Directors of each Loan Party approving this Agreement, and (ii) all
documents evidencing any other necessary corporate action and required
governmental and any third party approvals, licenses and consents with
respect to this Agreement.
(b) A copy of the certificate of incorporation of each Loan Party
certified as of a recent date by the Secretary of State of such Person's
jurisdiction of incorporation, together with certificates of such
official attesting to the good standing of such Person, and a copy of
the By-Laws of each such Person certified by its Secretary or one of its
Assistant Secretaries.
(c) A certificate of the Secretary or an Assistant Secretary of
each Loan Party certifying the names and true signatures of its officers
who have been authorized to execute and deliver this Agreement and each
other document and certificate to be executed or delivered hereunder on
behalf of such Person.
(d) A favorable opinion of Michael D. Fricklas, Deputy General
Counsel to the Loan Parties, in substantially the form of Exhibit C
hereto.
-31-
4.2. Additional Conditions Precedent to the Making of the Initial
------------------------------------------------------------
Loans. The making of the initial Loans hereunder is subject to the further
-----
conditions precedent that on the date of such Loans the following statements
shall be true:
(a) The Borrower shall have paid all costs, accrued and unpaid
fees and expenses referred to in Sections 3.4 and 12.4 (including,
without limitation, the legal fees and expenses referred to in Section
12.4(a)), in each case to the extent then due and payable.
(b) The Borrower shall have delivered a schedule of Viacom Inc.'s
1996 projected funding for production, distribution and acquisition of
feature films and programming for network TV and first-run TV reasonably
satisfactory to the Managing Agents.
4.3. Conditions Precedent to the Making of Each Loan. The
-----------------------------------------------
obligation of each Bank to make any Loan, including the initial Loans, shall
be subject to the further conditions precedent that the following statements
shall be true on the date of such Loan, before and after giving effect
thereto and to the application of the proceeds therefrom (and the acceptance
by the Borrower of the proceeds of such Loan shall constitute a
representation and warranty by the Borrower and, where such representation or
warranty relates to a Guarantor, by such Guarantor, that on the date of such
Loan such statements are true):
(a) The representations and warranties contained in Article VI
hereof (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.
(b) No event has occurred and is continuing, or would result from
the Loans being made on such date, which constitutes a Default or an
Event of Default.
ARTICLE V
GUARANTEE
5.1. Guarantee. Each of the Guarantors hereby, jointly and
---------
severally, unconditionally and irrevocably, irrespective of the validity and
enforceability of this Agreement, guarantees the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all
-32-
obligations of the Borrower and the other Guarantor hereunder now or
hereafter existing under this Agreement, whether for borrowed money,
interest, fees or any other amounts due hereunder or otherwise (the
"Obligations") and for the avoidance of doubt, such amount shall expressly
include all amounts which constitute part of the Obligations and would be
owed by the Borrower or any Guarantor hereunder, but for the fact that they
are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower or a Guarantor
(including all such amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the United States Bankruptcy Code,
11 U.S.C. Sec. 362(a), and the operation of Sections 502(b) and 506(b) of the
United States Bankruptcy Code, 11 U.S.C. Sec. 502(b) and Sec. 506(b) or any
analogous stay under any foreign law) and any and all expenses (including
counsel fees and expenses) reasonably incurred by any Bank, Facility Agent,
Managing Agent or Agent in enforcing any rights under this Article V.
5.2. Guarantee Absolute. Each of the Guarantors guarantees,
------------------
jointly and severally, that the Obligations will be paid strictly in
accordance with the terms of this Agreement, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting
any of such terms or the rights of any Bank, Facility Agent, Managing Agent
or Agent with respect thereto. The liability of each of the Guarantors under
this Article V shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of any provision of
this Agreement or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other amendment
or waiver of or any consent to departure from this Agreement;
(iii) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
other guaranty, for all or any of the Obligations; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Borrower or a Guarantor.
5.3. Waiver. Each of the Guarantors hereby waives all notices
------
with respect to any of the Obligations
-33-
and the guarantee of this Article V and any requirement that any Bank,
Facility Agent, Managing Agent or Agent protect, secure, perfect or insure
any security interests or lien on any property subject thereto or exhaust any
right or take any action against the Borrower, or any other person or entity
or any collateral.
5.4. Subrogation. (a) Neither of the Guarantors shall exercise
-----------
any rights which it may have acquired by way of subrogation under this
Agreement, by any payment made hereunder or otherwise nor shall either of the
Guarantors seek any reimbursement from Borrower or the other Guarantor hereto
in respect of payments made by any Guarantor hereunder, unless and until all
of the Obligations shall have been paid to the Banks and discharged, in full,
and if any payment shall be made to any Guarantor on account of such
subrogation or reimbursement rights at any time when the Obligations shall
not have been paid and discharged, in full, each and every amount so paid
shall forthwith be paid to the Banks to be credited and applied against the
Obligations, whether matured or unmatured.
(b) If, pursuant to applicable law, any Guarantor, by payment or
otherwise, becomes subrogated to all or any of the rights of the Banks under
this Agreement, the rights of the Banks to which such Guarantor shall be
subrogated shall be accepted by such Guarantor "as is" and without any
representation or warranty of any kind by the Banks, express or implied, with
respect to the legality, value, validity or enforceability of any of such
rights, or the existence, availability, value, merchantability or fitness for
any particular purpose of any collateral and shall be without recourse to the
Banks.
5.5. Continuing Guarantee; Transfer of Interest. The guarantee in
------------------------------------------
this Article V constitutes a continuing obligation and shall (i) remain in
full force and effect until indefeasible payment in full of the Obligations
and all other amounts payable under this Agreement, (ii) be binding upon each
of the Guarantors, their successors and assigns, and (iii) inure to the
benefit of and be enforceable by any Bank, Facility Agent, managing Agent or
Agent, and their respective successors, transferees, and assigns. Without
limiting the generality of the foregoing clause (iii), any Bank may assign or
otherwise transfer all or any part of its rights and obligations under this
Agreement in accordance with Section 12.7, and such other person or entity
shall thereupon become vested with all the rights in respect thereof granted
to such Bank in this Article V or otherwise, subject, however, to the
provisions of Article XII of this Agreement.
-34-
5.6. Reinstatement. This Article V shall remain in full force and
-------------
effect and continue to be effective should any proceeding be instituted by or
against any Loan Party for liquidation or reorganization, should any Loan
Party become insolvent or make an assignment for the benefit of creditors or
should a receiver or trustee be appointed for all or any significant part of
any Loan Party's assets, and shall, to the fullest extent permitted by law,
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Obligations, or any part thereof, is, pursuant
to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee of the Obligations, whether as a
"voidable preference", "fraudulent conveyance", or otherwise, all as though
such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored, or returned,
the Obligations shall, to the fullest extent permitted by law, be reinstated
and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement, Viacom Inc.
represents and warrants to the Banks as follows:
6.1. Corporate Existence; Compliance with Law. The Borrower, each
----------------------------------------
other Loan Party and each other Material Subsidiary of Viacom Inc. (i) is a
corporation duly incorporated, validly existing and in good standing under
the laws of the jurisdiction of its incorporation; (ii) is duly qualified and
in good standing as a foreign corporation under the laws of each other
jurisdiction in which the failure so to qualify is reasonably probable to
have a Material Adverse Effect; (iii) has all requisite corporate power and
authority to conduct its business as now being conducted and as proposed to
be conducted; (iv) is in compliance with its articles or certificate of
incorporation and by-laws; and (v) is in compliance with all applicable
Requirements of Law except such non-compliance as would not have a Material
Adverse Effect.
6.2. Corporate Power; Authorization; Enforceable Obligations. (a)
-------------------------------------------------------
The execution, delivery and performance by each Loan Party of this Agreement:
(i) is within its corporate powers;
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(ii) has been duly authorized by all necessary corporate action;
(iii) does not (A) contravene its certificate of incorporation or
by-laws, (B) violate any law or regulation (including, without
limitation, Regulations G, T, U or X of the Board of Governors of the
Federal Reserve System), or any order or decree of any court or
governmental instrumentality, except those as to which the failure to
comply would not have a Material Adverse Effect, (C) conflict with or
result in the breach of, or constitute a default under, any instrument,
document or agreement binding upon and material to such Loan Party, or
(D) result in the creation or imposition of any Lien upon any of the
Property of Viacom Inc. or any of its Subsidiaries; and
(iv) does not require the consent of, authorization by, approval
of, notice to, or filing or registration with, any Governmental
Authority (except for filing copies of this Agreement with the
Securities and Exchange Commission).
(b) This Agreement has been duly executed and delivered by each
Loan Party that is a party hereto or thereto, and is the legal, valid and
binding obligation of each such Person, enforceable against it in accordance
with its terms, except where such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or
limiting creditors' rights generally or equitable principles relating to
enforceability.
6.3. Taxes. All federal, and all material state, local and
-----
foreign tax returns, reports and statements required to be filed by Viacom
Inc. or any of its Subsidiaries have been filed with the appropriate
governmental agencies in all jurisdictions in which such returns, reports and
statements are required to be filed. All consolidated, combined or unitary
returns which include Viacom Inc. or any of its Subsidiaries have been filed
with the appropriate governmental agencies in all jurisdictions in which such
returns, reports and statements are required to be filed except where such
filing is being contested or may be contested. All federal, and all material
state, local and foreign taxes, charges and other impositions of Viacom Inc.,
its Subsidiaries or any consolidated, combined or unitary group which
includes Viacom Inc. or any of its Subsidiaries which are due and payable
have been timely paid prior to the date on which any fine, penalty, interest,
late charge or loss may be added thereto for non-payment thereof except
-36-
where contested in good faith and by appropriate proceedings if adequate
reserves therefor have been established on the books of Viacom Inc. or such
Subsidiary in accordance with GAAP. Proper and accurate amounts have been
withheld by or on behalf of Viacom Inc. and each of its Subsidiaries from
their respective employees for all periods in full and complete compliance
with the tax, social security and unemployment withholding provisions of
applicable federal, state, local and foreign law and such withholdings have
been timely paid to the respective governmental agencies, in all material
respects. Neither Viacom Inc. nor any of its Tax Affiliates has agreed or
has been requested to make any adjustment under Section 481(a) of the Code by
reason of a change in accounting method or otherwise relating to Viacom Inc.
or any of its Subsidiaries which will affect a taxable year of Viacom Inc. or
any of its Tax Affiliates ending after December 31, 1993, which has not been
reflected in the financial statements delivered pursuant to Section 8.8 and
which would have a Material Adverse Effect. Viacom Inc. has no obligation
under any tax sharing agreement or other tax sharing arrangement, other than
the Tax Sharing Agreement and tax sharing agreements or other tax sharing
arrangements providing for payments to Subsidiaries of Viacom Inc. which are
Tax Affiliates, which do not have a Material Adverse Effect.
6.4. Financial Information. (a) The report of Viacom Inc. on
---------------------
Form 10-K for the Fiscal Year ended December 31, 1995 is complete and correct
in all material respects as of such date, and the financial statements
therein have been prepared in accordance with GAAP and fairly present the
financial condition and results of operations of Viacom Inc. and each of its
consolidated Subsidiaries as of such date.
(b) Since December 31, 1995, there has been no Material Adverse
Change or Material Credit Agreement Change.
(c) None of Viacom Inc. or any Subsidiary of Viacom Inc. had at
December 31, 1995 any obligation, contingent liability, or liability for
taxes or long-term leases material to Viacom Inc. and its Subsidiaries taken
as a whole which is not reflected in the balance sheets referred to in
subsection (a) above or in the notes thereto.
6.5. Litigation. There are no pending, or to the best knowledge
----------
of Viacom Inc. threatened, actions, investigations or proceedings against or
affecting Viacom Inc. or any of its Subsidiaries before any court,
governmental agency or arbitrator in which, individually or in the aggregate,
there is a reasonable probability of an
-37-
adverse decision that could have a Material Adverse Effect or result in a
Material Credit Agreement Change.
6.6. Margin Regulations. Neither Guarantor is engaged in the
------------------
business of extending credit for the purpose of purchasing or carrying Margin
Stock, and no proceeds of any Borrowing will be used to purchase or carry any
Margin Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock in violation of Regulation U.
6.7. ERISA. (a) No liability under Sections 4062, 4063, 4064 or
-----
4069 of ERISA has been or is expected by Viacom Inc. to be incurred by Viacom
Inc. or any ERISA Affiliate with respect to any Plan which is a Single-
Employer Plan in an amount that could reasonably be expected to have a
Material Adverse Effect.
(b) No Plan which is a Single-Employer Plan had an accumulated
funding deficiency, whether or not waived, as of the last day of the most
recent fiscal year of such Plan ended prior to the date hereof. Neither
Viacom Inc. nor any ERISA Affiliate is (A) required to give security to any
Plan which is a Single-Employer Plan pursuant to Section 401(a)(29) of the
Code or Section 307 of ERISA, or (B) subject to a Lien in favor of such a
Plan under Section 302(f) of ERISA.
(c) Each Plan of Viacom Inc., each of its Subsidiaries and each of
its ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the Code, except where the failure to
comply would not result in any Material Adverse Effect.
(d) Neither Viacom Inc. nor any of its Subsidiaries has incurred a
tax liability under Section 4975 of the Code or a penalty under Section
502(i) of ERISA in respect of any Plan which has not been paid in full,
except where the incurrence of such tax or penalty would not result in a
Material Adverse Effect.
(e) None of Viacom Inc., any of its Subsidiaries or any ERISA
Affiliate has incurred or reasonably expects to incur any Withdrawal
Liability under Section 4201 of ERISA as a result of a complete or partial
withdrawal from a Multiemployer Plan which will result in Withdrawal
Liability to Viacom Inc., any of its Subsidiaries or any ERISA Affiliate in
an amount that could reasonably be expected to have a Material Adverse
Effect.
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6.8. No Defaults. Neither Viacom Inc. nor any of its Subsidiaries
-----------
is in breach of or default under or with respect to any instrument, document
or agreement binding upon Viacom Inc. or such Subsidiary which breach or
default is reasonably probable to have a Material Adverse Effect or result in
the creation of a Lien on any Property of Viacom Inc. or its Subsidiaries.
6.9. Investment Company Act. Neither Guarantor is an "investment
----------------------
company" or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended. The making of the Loans by the
Banks, the application of the proceeds and repayment thereof by the Borrower
and the consummation of the transactions contemplated by this Agreement will
not violate any provision of such act or any rule, regulation or order issued
by the Securities and Exchange Commission thereunder.
6.10. Insurance. All policies of insurance of any kind or nature
---------
owned by Viacom Inc. and its Subsidiaries are maintained with financially
sound and reputable insurers. Viacom Inc. currently maintains insurance with
respect to its Properties and business and causes its Subsidiaries to
maintain insurance with respect to their Properties and business against loss
or damage of the kinds customarily insured against by corporations engaged in
the same or similar business and similarly situated, of such types and in
such amounts as are customarily carried under similar circumstances by such
other corporations including, without limitation, workers' compensation
insurance.
6.11. Environmental Protection. (a) There are no known
------------------------
conditions or circumstances associated with the currently or previously owned
or leased properties or operations of Viacom Inc. or its Subsidiaries or
tenants which may give rise to any Environmental Liabilities and Costs which
would have a Material Adverse Effect; and
(b) No Environmental Lien has attached to any Property of Viacom
Inc. or any of its Subsidiaries which would have a Material Adverse Effect.
6.12. Title and Liens. Viacom Inc. and each of its Subsidiaries
---------------
has good and marketable title to its real properties and owns or leases under
Capitalized Leases all its other material Properties, in each case, as shown
on its most recent balance sheet, and none of such Properties is subject to
any Lien except as permitted under this Agreement.
-39-
6.13. Trademarks, Copyrights, Etc. Viacom Inc. and each of its
----------------------------
Subsidiaries own or have the rights to such trademarks, service marks, trade
names, copyrights, licenses or rights in any thereof, as in the aggregate are
adequate in the reasonable judgment of Viacom Inc. for the conduct of the
business of Viacom Inc. and its Subsidiaries as now conducted.
6.14. FCC Licenses, Franchises. Viacom Inc. and its Subsidiaries
------------------------
have all the FCC Licenses necessary for the conduct of their respective
businesses as now being conducted. Viacom Inc. and its Subsidiaries are in
substantial compliance with the Federal Communications Act of 1934, as
amended, and with the rules and regulations thereunder except for such
non-compliance which would not have a Material Adverse Effect. Neither
Viacom Inc. nor any of its Subsidiaries is a party to, nor has any knowledge
of, any investigation, notice of violation, order or complaint issued by or
before the FCC, in which there is a reasonable probability of an adverse
decision which is reasonably probable to have a Material Adverse Effect. The
operation and maintenance of the towers and any antenna systems relating to
each of the broadcast Properties owned by Viacom Inc. and its Subsidiaries or
used in connection with the transmission of signals therefrom do not violate
any Requirement of Law except for such non-compliance which would not have a
Material Adverse Effect. Viacom Inc. and its Subsidiaries have all the
Franchises necessary for the conduct of their businesses as now being
conducted and are in substantial compliance with the requirements of such
Franchises, except for such non-compliance which would not have a Material
Adverse Effect. Viacom Inc. and its Subsidiaries have no reason to believe
that any FCC License or any Franchise of Viacom Inc. and its Subsidiaries
will not be renewed in the ordinary course except for such nonrenewal which
would not have a Material Adverse Effect.
6.15. Disclosure. All written information relating to the
----------
Borrower, the Guarantors and the Subsidiaries of Viacom Inc. that has been
delivered to the Banks in connection with this Agreement prior to the Initial
Funding Date was complete and correct in all material respects, taken as a
whole.
ARTICLE VII
FINANCIAL COVENANTS
As long as any of the Loans shall remain unpaid or any Bank shall
have any Commitment hereunder, unless
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otherwise agreed by the written consent of the Majority Banks:
7.1. Total Leverage Ratio. The Total Leverage Ratio shall not
--------------------
exceed, as of the last day of any Fiscal Quarter described below, the amount
specified with respect to such period:
Date Ratio
---- -----
June 30, 1996 and 5.25x
thereafter
7.2. Ratio of EBIDT to Trailing Total Cash Interest and Preferred
------------------------------------------------------------
Dividends. The ratio of EBIDT to Total Cash Interest and Preferred Dividends
---------
shall not be less, as of the last day of any Fiscal Quarter occurring during
any period set forth below, than the amount specified with respect to such
period:
Date Ratio
---- -----
June 30, 1996 through December 31, 1996 2.00x
March 31, 1997 and thereafter 2.25x
7.3. Minimum Net Worth. On the last day of each Fiscal Quarter,
-----------------
commencing September 30, 1994 the Net Worth of Viacom Inc. and its
Subsidiaries shall not be less than 75% of the Net Worth of Viacom Inc. and
its Subsidiaries at the date which is the first Fiscal Quarter end date after
the Effective Date (as that term is defined in the September Agreement).
ARTICLE VIII
AFFIRMATIVE COVENANTS
As long as any of the Loans shall remain unpaid or any Bank shall
have any Commitment hereunder, unless otherwise agreed by the written consent
of the Majority Banks:
8.1. Compliance with Laws, Etc. Viacom Inc. 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.
-41-
8.2. Payment of Taxes, Etc. Viacom Inc. and any consolidated,
----------------------
combined or unitary group which includes Viacom Inc. or any of its
Subsidiaries shall pay and discharge, and cause each Subsidiary of Viacom
Inc. 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 Viacom Inc. or such
Subsidiary in accordance with GAAP.
8.3. Maintenance of Insurance. Viacom Inc. shall maintain, and
------------------------
cause each of its Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and covering
such risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which Viacom Inc.
or such Subsidiary operates. Viacom Inc. will furnish to the Administrative
Agent from time to time such information as may be requested as to such
insurance.
8.4. Preservation of Corporate Existence, Etc. Viacom Inc. shall
-----------------------------------------
preserve and maintain, and cause each of its Subsidiaries to preserve and
maintain, their respective corporate existences; provided, however, that the
-------- -------
corporate existence of any Subsidiary (other than Viacom International and
the Borrower) may be terminated if, in the good faith judgment of the board
of directors or the chief financial officer of Viacom Inc., such termination
is in the best interest of Viacom Inc. and such termination would not have a
Material Adverse Effect; and provided further, however, that Viacom Inc. 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 Inc. hereunder.
8.5. Books and Access. Viacom Inc. shall, and shall cause each of
----------------
its Subsidiaries to, keep proper books of record and accounts in conformity
with GAAP, and upon reasonable notice and at such reasonable times during the
usual business hours as often as may be reasonably requested, permit
representatives of the Administrative Agent, at its own initiative or at the
request of any Bank, to make inspections of its Properties, to examine its
books, accounts and records and make copies and memoranda thereof and to
discuss its affairs and finances with its officers or directors and
independent public accountants.
-42-
8.6. Maintenance of Properties, Etc. Viacom Inc. 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.
8.7. Application of Proceeds. The Borrower shall use the proceeds
-----------------------
of the Loans for the funding of the production, distribution and acquisition
of motion pictures or other programming rights.
8.8. Financial Statements of Viacom Inc. Viacom Inc. shall
----------------------------------
furnish to the Banks:
(a) as soon as available but not later than sixty (60) days after
the close of each of the first three (3) Fiscal Quarters of each Fiscal Year
of Viacom Inc., (i) consolidated balance sheets of Viacom Inc. and its
Subsidiaries as at the end of such Fiscal Quarter and the related
consolidated statements of operations, the consolidated statement of
shareholders' equity and the consolidated statement of cash flows of Viacom
Inc. and its Subsidiaries for such Fiscal Quarter and (in the case of the
second and third Fiscal Quarters) for the period from the beginning of the
then current Fiscal Year to the end of such Fiscal Quarter (along with
business segment information customarily prepared by Viacom Inc.), setting
forth in each case in comparative form the consolidated figures for the
corresponding periods of the previous Fiscal Year, all in reasonable detail
and certified by a Responsible Financial Officer of Viacom Inc. as fairly
presenting, in accordance with GAAP, the financial condition and results of
operations of Viacom Inc. and its Subsidiaries, subject to changes resulting
from normal year-end audit adjustments; and (ii) a report certified by such
Responsible Financial Officer of all commitments for program license fees
that are not reflected on the balance sheets referred to above in excess of
Fifty Million Dollars ($50,000,000) for any one such commitment or series of
related commitments incurred by Viacom Inc. or any Subsidiary during such
Fiscal Quarter, together with a statement of all such obligations outstanding
at the end of such Fiscal Quarter;
(b) (i) as soon as available but no later than one hundred twenty
(120) days after the close of each Fiscal Year of Viacom Inc., (A)
consolidated balance sheets of Viacom Inc. and its Subsidiaries as at the end
of such year and the related consolidated statements of operations, the
-43-
consolidated statement of shareholders' equity and the consolidated statement
of cash flows of Viacom Inc. and its Subsidiaries for such year (along with
business segment information customarily prepared by Viacom Inc.), setting
forth in each case in comparative form the consolidated figures for the
previous Fiscal Year, all in reasonable detail and certified in the case of
the consolidated financial statements by Price Waterhouse or another firm of
nationally recognized independent public accountants, which report shall
state without qualification as to the scope of the audit or as to going
concern that such consolidated financial statements present fairly the
financial position and the results of operations as at the dates and for the
periods indicated in conformity with GAAP and that the audit by such
accountants in connection with such consolidated financial statements has
been made in accordance with GAAS, and (B) a report certified by a
Responsible Financial Officer of all commitments for program license fees
that are not reflected on the balance sheets referred to above in excess of
Fifty Million Dollars ($50,000,000) for any one such commitment or series of
related commitments incurred by Viacom Inc. or any Subsidiary during the last
Fiscal Quarter of such Fiscal Year, together with a statement of all such
obligations at the end of such Fiscal Quarter; (ii) as soon as available but
not later than one hundred twenty (120) days after the close of each Fiscal
Year of Viacom Inc., a certificate from such accounting firm that in the
course of the regular audit of the business of Viacom Inc. and its
Subsidiaries, which audit was conducted by such accounting firm in accordance
with GAAS, such accounting firm obtained no knowledge that an Event of
Default or Default has occurred and is continuing or, if in the opinion of
such accounting firm, an Event of Default or Default has occurred and is
continuing, a statement as to the nature thereof;
(c) together with each delivery of financial statements of Viacom
Inc. pursuant to clauses (a) and (b) above and commencing with the Fiscal
Quarter ending June 30, 1996, a certificate issued by a Responsible Financial
Officer of Viacom Inc. (i) demonstrating compliance at the end of the
accounting period described in such statements with the financial covenants
contained herein and (ii) containing in reasonable detail the component
figures contained in the respective total figures stated in such certificate;
and
(d) together with each delivery of financial statements of Viacom
Inc. and its Subsidiaries pursuant to clauses (a) or (b) above, and
commencing with the Fiscal Quarter ending June 30, 1996, a certificate signed
by a
-44-
Responsible Financial Officer of Viacom Inc. stating that (i) such officer is
familiar with both this Agreement and the business and financial condition of
Viacom Inc. and the Borrower, and (ii) no Event of Default or Default has
occurred and is continuing or if an Event of Default or Default has occurred
and is continuing a statement as to the nature thereof, and whether or not
the same shall have been cured.
8.9. Reporting Requirements. Viacom Inc. 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 Viacom Inc. or within
Viacom Inc.'s control;
(b) promptly and in any event within thirty (30) days after Viacom
Inc., any of its Subsidiaries or any ERISA Affiliate knows that any ERISA
Event has occurred (other than a Reportable Event for which notice to the
PBGC is waived), a written statement of the chief financial officer or other
appropriate officer of Viacom Inc. describing such ERISA Event and the
action, if any, which Viacom Inc., any of its Subsidiaries or any ERISA
Affiliate proposes to take with respect thereto, and a copy of any notice
filed with the PBGC or the IRS pertaining thereto;
(c) promptly and in any event within thirty (30) days after notice
or knowledge thereof, notice that Viacom Inc. or any of its Subsidiaries
becomes subject to the tax on prohibited transactions imposed by Section 4975
of the Code, together with a copy of Form 5330;
(d) promptly after the commencement thereof, notice of all
actions, suits and proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
against or affecting the Borrower, Viacom Inc., or any Subsidiary of Viacom
Inc., in which there is a reasonable probability of an adverse decision which
would have a Material Adverse Effect;
(e) promptly upon Viacom Inc. or any of its Subsidiaries learning
of (i) any Event of Default or any Default, or (ii) any Material Credit
Agreement Change, telephonic or telegraphic notice specifying the nature of
such Event of Default, Default or Material Credit Agreement Change, including
the anticipated effect thereof, which
-45-
notice shall be promptly confirmed in writing within five days;
(f) promptly after the sending or filing thereof, copies of all
reports which Viacom Inc. sends to its security holders generally, and copies
of all reports and registration statements which Viacom Inc. or any of its
Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange;
(g) promptly upon, and in any event within 30 days of, Viacom Inc.
or any of its Subsidiaries learning of any of the following:
(i) notice that any Property of Viacom Inc. or any of its
Subsidiaries is subject to any Environmental Liens individually or in
the aggregate which would have a Material Adverse Effect;
(ii) any proposed acquisition of stock, assets or real estate, or
any proposed leasing of Property, or any other action by Viacom Inc. or
any of its Subsidiaries in which there is a reasonable probability that
Viacom Inc. or any of its Subsidiaries would be subject to any material
Environmental Liabilities and Costs, provided that, in the event of any
--------
such proposed acquisition or lease, Viacom Inc. must furnish to the
Banks evidence in a form acceptable to the Banks that the proposed
acquisition will not have a Material Adverse Effect;
(h) prior to the effectiveness thereof, information relating to
any proposed change in the accounting treatment or reporting practices of
Viacom Inc. and its Subsidiaries the nature or scope of which materially
affects the calculation of any component of any financial covenant, standard
or term contained in this Agreement;
(i) promptly upon Viacom Inc. learning of any material Franchise
or material FCC License being revoked, canceled or terminated, or renewal
thereof denied for any reason, written notice specifying the reasons for such
revocation, cancellation, termination or denial, the anticipated effect
thereof, and the actions, if any, being taken by Viacom Inc. to remedy the
same; and
(j) from time to time, such other information and materials as the
Administrative Agent may reasonably request.
-46-
ARTICLE IX
NEGATIVE COVENANTS
So long as any of the Loans shall remain unpaid or any Bank shall
have any Commitment hereunder, without the written consent of the Majority
Banks:
9.1. Liens, Etc. Viacom Inc. shall not, directly or indirectly,
-----------
create or suffer to exist, or permit any of its Subsidiaries to create or
suffer to exist, any Lien upon or with respect to any of its Properties,
whether now owned or hereafter acquired, or assign, or permit any of its
Subsidiaries to assign, any right to receive income, in each case to secure
or provide for the payment of any Indebtedness of any Person, except:
(i) purchase money Liens or purchase money security interests upon
or in any Property acquired or held by Viacom Inc. or any of its
Subsidiaries in the ordinary course of business to secure the purchase
price of such Property or to secure Indebtedness incurred solely for the
purpose of financing the acquisition of such Property;
(ii) Liens on Property of Persons which become Subsidiaries of
Viacom Inc. after the Initial Funding Date securing Indebtedness
existing, with respect to any such Person, on the date such Person
becomes a Subsidiary (other than any such Lien created in contemplation
of such Person becoming a Subsidiary);
(iii) Liens on Property of Persons which become Subsidiaries of
Viacom Inc. after the Initial Funding Date securing Indebtedness
incurred by such Person after the date such Person becomes a Subsidiary;
provided, however, that the aggregate principal amount of Indebtedness
-------- -------
referred to in this clause (iii) secured by Liens shall not exceed
$30,000,000 at any time outstanding;
(iv) Liens upon or in the satellite transponders listed on
Schedule 9.1(a) (and directly related Property) to secure the purchase
price of such transponders, or to secure Indebtedness incurred for the
purpose of financing or refinancing the acquisition of such
transponders;
(v) Liens listed on Schedule 9.1(b); and
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(vi) any Lien securing the renewal, extension or refunding of any
Indebtedness secured by any Lien permitted by clause (i), (ii), (iii),
(iv) or (v) above.
9.2. Mergers. Viacom Inc. shall not, nor shall it permit any of
-------
its Subsidiaries representing a substantial portion of the assets of Viacom
Inc. and its Subsidiaries taken as a whole to, merge or consolidate in any
transaction in which such entity is not the surviving Person other than:
(i) in mergers of any Subsidiary into Viacom Inc. or any other wholly owned
Subsidiary of Viacom Inc.; or (ii) in a merger of Viacom Inc. 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 Inc. hereunder.
9.3. Substantial Asset Sale. Viacom Inc. shall not, and shall not
----------------------
permit any of its Subsidiaries to, sell assets constituting all or a
substantial portion of consolidated assets of Viacom Inc. and its
Subsidiaries taken as a whole to any Person other than to Viacom Inc. or its
wholly owned Subsidiary.
9.4. Transactions with Affiliates. Viacom Inc. shall not engage
----------------------------
in, and will not permit any of its Subsidiaries to engage in, any transaction
with an Affiliate of Viacom Inc. or of such Subsidiary (other than
transactions in the ordinary course of business between a Subsidiary and its
parent or among Subsidiaries of Viacom Inc.) except on terms no less
favorable to Viacom Inc. or such Subsidiaries than as would be obtained in a
comparable arm's-length transaction.
9.5. Margin Stock. Viacom Inc. shall not permit more than twenty-
------------
five percent (25%) of the value, within the meaning of Regulation U, as
determined by any reasonable method, of the assets of Viacom Inc. and its
Subsidiaries, to be Margin Stock, nor will the Borrower use the proceeds of
any Loan to purchase or carry any Margin Stock.
9.6. Subsidiary Indebtedness. Viacom Inc. shall not permit any of
-----------------------
its Subsidiaries, other than Viacom International, to incur Indebtedness for
borrowed money other than (a) the Subsidiary Loans (as defined in the
Subsidiary Facility), (b) under existing facilities identified on Schedule
9.6 or any replacement facilities thereto which in the aggregate do not
exceed the amounts of the commitments on such Schedule and (c) Indebtedness
for borrowed money in an aggregate amount at any time
-48-
outstanding of not more than $300 million; provided, however, the aggregate
------------------
amount of Indebtedness for borrowed money scheduled to mature earlier than
six months after the Commitment Termination Date at any time permitted to be
outstanding under Sections 9.6(c) and 9.7(b) may not exceed $300 million.
9.7. Other Restrictions on Indebtedness. Viacom Inc. shall not,
----------------------------------
and shall not permit Viacom International to, incur Indebtedness for borrowed
money maturing earlier than six months after the Commitment Termination Date
other than (a) Commercial Paper and (b) up to $300 million at any time
outstanding (less the aggregate amount outstanding under Section 9.6(c)
scheduled to mature earlier than six months after the Commitment Termination
Date) and on terms no more onerous than the terms hereof.
ARTICLE X
EVENTS OF DEFAULT
10.1. Events of Default. If any of the following events ("Events
-----------------
of Default") shall occur and be continuing:
(a) The Borrower or any other Loan Party shall fail to pay (i) any
principal when due in accordance with the terms and provisions of this
Agreement, or (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 by any Loan Party (or any of its officers) in connection
with this Agreement 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, 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 Viacom Inc. pursuant to
Section 8.9(e), or (ii) written notice thereof shall have been given to
Viacom Inc. by the Administrative Agent or any Bank; or
(d) Viacom Inc. or any of its Subsidiaries shall fail to pay any
principal of, or premium or interest
-49-
on, any Indebtedness in an aggregate principal amount of $50,000,000 or
more (excluding Indebtedness hereunder) of Viacom Inc. or such
Subsidiary, when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise); or
any other event shall occur or condition shall exist under any agreement
or instrument relating to any such Indebtedness, if the effect of such
event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Indebtedness or to terminate any commitment to
lend; or any such Indebtedness shall be declared to be due and payable,
or required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof and, with respect to
all of the foregoing, after the expiration of any applicable grace
period or the giving of any required notice or both; provided, however,
-------- -------
that no extension of any grace period applicable to any such
Indebtedness shall be taken into account for the purposes of this
subsection (d); or
(e) There shall occur and be continuing an Event of Default under
(and as defined in) the July Agreements or the September Agreement; or
(f) Viacom Inc., any of its Material Subsidiaries or the Borrower
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 Inc., any of its Material
Subsidiaries or the Borrower seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee or other similar official for it or
for a material part of its Property employed in its business or any
writ, attachment, execution or similar process shall be issued or levied
against a material part of the Property employed in the business of
Viacom Inc. and its Subsidiaries taken as a whole, and, in the case of
any such proceedings instituted against Viacom Inc., any of its Material
Subsidiaries or the Borrower (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
-50-
occur; or Viacom Inc., any of its Material Subsidiaries or the Borrower
shall take any corporate action to authorize any of the actions set
forth above in this subsection (f); or
(g) Any order for the payment of money or judgment of any court,
not appealable or not subject to certiorari or appeal (a "Final
Judgment"), which, with other outstanding Final Judgments, exceeds an
aggregate of $50,000,000 shall be rendered against Viacom Inc. 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 Viacom Inc. 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, Viacom Inc., 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, Viacom
Inc., 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 Viacom Inc., any of its
Material Subsidiaries or any of its or their ERISA Affiliates, as
finally determined, exceeds $25,000,000 in any case set forth in clauses
(i)-(iv) above, or exceeds $25,000,000 in the aggregate for all such
cases; and, provided further, however, that with respect to the events
-------- ------- -------
listed in clauses (i), (iii) and (iv) hereof there shall be no Event of
Default if the liability of Viacom Inc., the relevant Material
Subsidiary or the relevant ERISA Affiliate is satisfied in full or in
accordance with the due dates therefor; or
(i) (i) NAI shall fail to own of record and beneficially not less
than 51% of the outstanding stock having ordinary voting power to elect
a majority of the board of directors of Viacom Inc. 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
-51-
Administrative Agent by Viacom Inc. pursuant to Section 8.9(e), or
(B) written notice thereof shall have been given to Viacom Inc. by the
Administrative Agent or any Bank; or
(j) This Agreement shall cease to be valid or enforceable for any
reason in any material respect;
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the consent, of the Majority Banks, by notice to the
Borrower and Viacom Inc., declare the obligation of each Bank to make Loans
to be terminated, whereupon the same shall forthwith terminate, and
(ii) shall at the request, or may with the consent, of the Majority Banks, by
notice to the Borrower and Viacom Inc., declare all amounts due under this
Agreement and all interest thereon to be forthwith due and payable, whereupon
all amounts due under this Agreement and all such interest and all such
amounts shall become and be forthwith due and payable; provided, however,
-------- -------
that upon an actual or deemed entry of an order for relief with respect to
Viacom Inc., any of its Material Subsidiaries or the Borrower under the
federal Bankruptcy Code, (A) the obligation of each Bank to make Loans shall
automatically be terminated and (B) all amounts due under this Agreement and
all such interest and all such amounts shall automatically and without
further notice become and be due and payable. In addition to the remedies
set forth above, the Administrative Agent may exercise any other remedies
provided for by this Agreement in accordance with the terms hereof or any
other remedies provided by applicable law.
ARTICLE XI
THE MANAGING AGENTS AND THE FACILITY AGENTS
11.1. Authorization and Action. Each Bank hereby appoints and
------------------------
authorizes each Facility Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement as are delegated to such
Facility Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for
by this Agreement, no Facility Agent shall be required to exercise any
discretion or take any action, but each shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Banks (or when expressly
required hereunder, all the Banks), and such instructions shall be binding
upon all Banks; provided, however, that no Facility Agent shall be
-------- -------
-52-
required to take any action that exposes such Facility Agent to personal
liability or that is contrary to this Agreement or applicable law. Each
Facility Agent agrees to give to each Bank prompt notice of each notice given
to it by the Borrower or either Guarantor pursuant to the terms of this
Agreement.
11.2. Managing Agents' and Facility Agents' Reliance, Etc.
----------------------------------------------------
Neither the Managing Agents, the Facility Agents, their Affiliates nor any of
their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by any of them under or in connection
with this Agreement, except for its own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, (i) any
Managing Agent or Facility Agent may consult with legal counsel (including
counsel to the Borrower or Viacom Inc.), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (ii) neither the Managing Agents nor the
Facility Agents make any warranty or representation to any Bank and none of
them shall be responsible to any Bank for any statements, warranties or
representations made in or in connection with this Agreement; (iii) neither
the Managing Agents nor the Facility Agents shall have any duty to ascertain
or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement on the part of the Loan Parties or
to inspect the Properties (including the books and records) of Viacom Inc.;
(iv) neither the Managing Agents nor the Facility Agents shall be responsible
to any Bank for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument
or document furnished pursuant hereto; and (v) neither the Managing Agents
nor the Facility Agents shall incur liability under or in respect of this
Agreement by acting upon any notice, consent, certificate or other instrument
or writing (which may be by telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties. The 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.
11.3. The Bank of New York, Citibank, N.A., Morgan Guaranty Trust
-----------------------------------------------------------
Company of New York, Bank of America NT&SA and Their Affiliates. With
---------------------------------------------------------------
respect to the Commitments of The Bank of New York, Citibank, N.A., Morgan
Guaranty Trust Company of New York and Bank of America NT&SA, respectively,
and the Loans made by each of them, each of
-53-
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, Viacom Inc., any of its Subsidiaries and any
Person who may do business with or own securities of Viacom Inc. or any such
Subsidiary, all as if The Bank of New York, Citibank, N.A., Morgan Guaranty
Trust Company of New York or Bank of America NT&SA, as the case may be, were
not a Managing Agent or Facility Agent, as the case may be, and without any
duty to account therefor to the Banks.
11.4. Bank Credit Decision. Each Bank acknowledges that it has,
--------------------
independently and without reliance upon the Managing Agents, the Facility
Agents, the Arrangers, the Agents or any other Bank, and based on the
financial statements referred to in Article VI 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 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.
11.5. Determinations Under Sections 4.1, 4.2 and 4.3. For
----------------------------------------------
purposes of determining compliance with the conditions specified in Sections
4.1, 4.2 and 4.3, each Bank shall be deemed to have consented to, approved or
accepted, or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to
the Banks unless an officer of the Administrative Agent responsible for the
transactions contemplated by this Agreement shall have received notice from
such Bank prior to the applicable Borrowing specifying its objection thereto
(unless such objection shall have been withdrawn by notice to the
Administrative Agent to that effect or such Bank shall have made available to
the Administrative Agent such Bank's ratable portion of such Borrowing).
-54-
11.6. 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 Loan Parties), ratably according to such
Bank's Ratable Portion of the Commitments, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements (including, without limitation, fees
and disbursements of legal counsel) of any kind or nature whatsoever which
may be imposed on, incurred by, or asserted against, any such Person in any
way relating to or arising out of this Agreement or any action taken or
omitted by any such Person under this Agreement; provided, however, that no
-------- -------
Bank shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from any such Person's gross negligence or willful
misconduct or from any violation or alleged violation by any such Person or
any other Bank of any law, rule or regulation or any guideline or request
from any central bank or other Governmental Authority (whether or not having
the force of law) or, with respect to any Managing Agent or Facility Agent,
any conflict or alleged conflict between its rights and duties in its
capacity as such or as a Bank under this Agreement and any other rights or
duties it may have in any other capacity in which it may act in connection
with the consummation of the transactions contemplated by this Agreement,
whether or not such Bank is a party to such transactions. Without limitation
of the foregoing, each Bank agrees to reimburse any such Person promptly upon
demand for its ratable share of any out-of-pocket expenses (including fees
and disbursements of one counsel) incurred by such Person in connection with
the preparation, execution, delivery, administration, modification, amendment
or enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, this
Agreement, to the extent that such Person is not reimbursed for such expenses
by the Loan Parties.
11.7. Successor Facility Agents. Any Facility Agent may resign
-------------------------
at any time by giving written notice thereof to the Banks and the Borrower
and may be removed at any time with or without cause by the Majority Banks.
Upon any such resignation or removal, the Majority Banks shall have the right
to appoint a successor to such Facility Agent. If no successor to such
Facility Agent shall have been so appointed by the Majority Banks, and shall
have accepted such appointment, within 30 days after retiring Facility
Agent's giving of notice of resignation or the
-55-
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 XI shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Facility Agent.
ARTICLE XII
MISCELLANEOUS
12.1. Amendments, Etc. (a) No amendment or waiver of any
----------------
provision of this Agreement, nor consent to any departure by any Loan Party
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, do any of the following:
(a) waive any of the conditions specified in Section 4.1, 4.2 or 4.3;
(b) increase the Commitments of the Banks or subject the Banks to any
additional obligations; (c) change the principal of, or decrease the interest
on, any amounts payable hereunder or reduce the amount of any Commitment Fee
payable to the Banks hereunder; (d) postpone any date fixed for any scheduled
payment of Commitment Fee, or scheduled payment of principal of, or interest
on, any amounts, payable hereunder; (e) change the definition of Majority
Banks; (f) amend this Section 12.1; or (g) amend clause (i) of Section 12.6
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.
(b) Viacom Inc. will not enter into any amendment of the July
Agreements or the September Agreement with
-56-
respect to provisions that are also included in this Agreement, unless it
shall simultaneously therewith enter into a corresponding amendment to this
Agreement; and it will not pay or agree to pay any compensation (either by
way of direct payments or agreements to increase fees or margins, or
otherwise) in connection with any such corresponding amendment of or waiver
under the July Agreements, unless proportionately equal compensation is paid,
or agreed to be paid, to the Banks under this Agreement.
12.2. Notices, Etc. Except as otherwise set forth herein, all
-------------
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopy or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered by hand, if to the
Borrower, at its address at 1515 Broadway, New York, New York 10036,
Attention: Treasurer; if to Viacom Inc., at its address at 1515 Broadway,
New York, New York 10036, Attention: Treasurer; if to Viacom International
at its address at 1515 Broadway, New York, New York 10036, Attention:
Treasurer; if to any Bank, at its Domestic Lending Office specified opposite
its name on Schedule I; and if to the Administrative Agent, at its address at
399 Park Avenue, 8th Floor, New York, New York 10021, Attention: Robert F.
Parr; or, as to the Borrower, Viacom Inc., Viacom International, any Bank or
the Administrative Agent, at such other address as shall be designated by
such party in a written notice to the other parties and, as to each other
party, at such other address as shall be designated by such party in a
written notice to the Borrower, Viacom Inc., Viacom International 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 XI shall not be effective until received by
the Administrative Agent.
12.3. No Waiver; Remedies. No failure on the part of any Bank,
-------------------
the Managing Agents or any Facility Agent to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
-57-
12.4. Costs; Expenses; Indemnities. (a) The Borrower agrees to
----------------------------
pay on demand all costs and expenses in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Agreement 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 and the other documents to be delivered hereunder and
thereunder.
(b) The Borrower agrees to defend, indemnify and hold harmless
each of the Managing Agents, the Facility Agents, the Arrangers and the Banks
and their respective affiliates and their respective directors, officers,
attorneys, agents, employees, successors and assigns (each, an "Indemnified
Person") from and against any and all liabilities, obligations, losses,
damages, penalties, actions, claims, judgments, suits, costs, expenses and
disbursements of any kind or nature whatsoever (including, without
limitation, fees and disbursements of counsel of the Managing Agents, the
Facility Agents, the Arrangers or the Banks) which may be incurred by or
asserted or awarded against any Indemnified Person, in each case arising in
any manner of or in connection with or by reason of this Agreement, the
Commitments or any undertakings in connection therewith, or the proposed or
actual application of the proceeds of the Loans (all of the foregoing collec-
tively, the "Indemnified Liabilities") and will reimburse each Indemnified
Person on a current basis for all expenses (including counsel fees as they
are incurred by such party) in connection with investigating, preparing or
defending any such action, claim or suit, whether or not in connection with
pending or threatened litigation irrespective of whether such Indemnified
Person is designated a party thereto; provided that the Borrower shall not
--------
have any liability hereunder to any Indemnified Person with respect to
Indemnified Liabilities which are determined by a final and nonappealable
judgment of a court of competent jurisdiction to have arisen primarily from
the gross negligence or willful misconduct of such Indemnified Person; and
provided further, that if the Borrower has determined in good faith that such
-------- -------
Indemnified Liabilities were primarily the result
-58-
of such Indemnified Person's gross negligence or willful misconduct, it shall
not be obligated to pay such Indemnified Liabilities until a court of
competent jurisdiction has determined whether such Indemnified Person acted
with gross negligence or willful misconduct. If for any reason the foregoing
indemnification is unavailable to an Indemnified Person or insufficient to
hold an Indemnified Person harmless, then the Borrower shall contribute to
the amount paid or payable by such Indemnified Person as a result of any
Indemnified Liability in such proportion as is appropriate to reflect not
only the relative benefits received by the Borrower and each Managing Agent,
each Facility Agent, each Arranger and each Bank, but also the relative fault
of the Borrower and each Managing Agent, each Facility Agent, each Arranger
and each Bank, as well as any other relevant equitable considerations. The
foregoing indemnity shall be in addition to any rights that any Indemnified
Person may have at common law or otherwise, including, but not limited to,
any right to contribution.
(c) If any Bank receives any payment of principal of, or is
subject to a conversion of, any Eurodollar Rate Loan other than on the last
day of an Interest Period relating to such Loan, as a result of any payment
or conversion made by the Borrower or acceleration of the maturity of the
amounts due under this Agreement pursuant to Section 10.1 or for any other
reason, the Borrower shall, upon demand by such Bank (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Bank any amounts required to compensate such Bank for any
additional losses, costs or expenses which it may reasonably incur as a
result of such payment or conversion, including, without limitation, any loss
(excluding loss of the margin payable in accordance with Section 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 Loan. The foregoing obligations of the
Borrower contained in paragraphs (a), (b) and (c) of this Section 12.4, and
the obligations of the Borrower contained in Sections 3.5(b) and 3.7, shall
survive the payment of the Loans.
12.5. Right of Set-Off. (a) 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 10.1 to authorize the
Administrative Agent to declare all amounts under this Agreement due and
payable pursuant to the provisions of Section 10.1 or the automatic
acceleration of such amounts pursuant to the proviso to that Section, each
Bank is hereby
-59-
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Bank to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement irrespective of whether or not such
Bank shall have made any demand under this Agreement and although such
obligations may be unmatured. Each Bank agrees promptly to notify the
Borrower after any such set-off and application made by such Bank; provided,
--------
however, that the failure to give such notice shall not affect the validity
-------
of such set-off and application. The rights of each Bank under this Sec-
tion 12.5 are in addition to any other rights and remedies (including,
without limitation, any other rights of set-off) which such Bank may have.
(b) Upon the occurrence and during the continuance of any Event of
Default and, except in the case of one of the events referred in clause (f)
of Section 10.1 of this Agreement, the making of the request or the granting
of the consent specified by Section 10.1 of this Agreement to authorize the
Administrative Agent to declare all amounts under this Agreement due and
payable pursuant to the provisions of said Section 10.1, 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 each of
the Guarantors against any and all of the obligations of each of the
Guarantors 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 contingent and unmatured. Each Bank agrees
promptly to notify the Guarantor 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 12.5 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Bank may
have.
12.6. Binding Effect. This Agreement shall become effective when
--------------
it shall have been executed by the Borrower, each of the Guarantors, 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
-60-
and thereafter shall be binding upon and inure to the benefit of the
Borrower, each of the Guarantors, 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) each of the Loan Parties
shall have no right to assign its rights or obligations hereunder or any
interest herein (and any such purported assignment shall be void) without the
prior consent of the Banks except in connection with any (x) merger or
consolidation permitted under Section 9.2 or the (y) merger, consolidation or
sale of assets consented to by the Majority Banks (ii) no Bank may sell,
transfer, assign, pledge or grant participations in any of its Loans or any
of its rights or obligations hereunder except in accordance with Section 12.7
or as expressly required hereunder.
12.7. Assignments and Participations; Additional Banks. (a) Any
------------------------------------------------
Bank may, at any time, by notice substantially in the form of Exhibit F
hereto (each, a "Notice of Assignment and Acceptance") delivered to the
Administrative Agent for its acceptance and recording, together with a
recording fee in the amount of $3,000, assign all or any part of its rights
and obligations and delegate its duties under this Agreement (A) to any other
Bank or any affiliate of any Bank which actually controls, is controlled by,
or is under common control with such Bank or to any Federal Reserve Bank (in
either case without limitation as to amount), (B) to any Bank (as defined in
each of the September Agreement and each of the July Agreements) or any
Affiliate of any such Bank which actually controls, is controlled by or is
under common control with such Bank; or (C) with the prior consent of the
Borrower (such consent not to be unreasonably withheld), to any other Person
(but if in part, in a minimum amount of $10,000,000 or, if less, the balance
of such Bank's Commitment; provided, however, that each assigning Bank must
-------- -------
assign an identical percentage of a Loan and its related Commitment.
(b) Any Bank may at any time sell or grant participations in its
Commitment, or the obligations owing to or from any Person existing under
this Agreement; provided, however, that (i) as between such Bank and the
-------- -------
Borrower, the existence of such participations shall not give rise to any
direct rights or obligations between the Borrower and the participants;
(ii) such Bank shall remain solely responsible to the other parties hereto
for the performance of such obligations; (iii) the Borrower, the Guarantors,
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
-61-
grant of a participation shall, without the consent of the Borrower, require
the Borrower to file a registration statement with the Securities and
Exchange Commission or apply to qualify the Commitments or the Loans under
the securities laws of any state.
(c) If an assignment is made by any Bank in accordance with the
provisions of paragraph (a) above, upon acceptance and recording by the
Administrative Agent, and approval by the Borrower, where applicable, of each
Notice of Assignment and Acceptance, (i) the assignee thereunder shall become
a party to this Agreement and the Borrower and each of the Guarantors shall
release and discharge the assigning Bank from its duties, liabilities or
obligations under this Agreement to the extent the same are so assigned and
delegated by such Bank, provided that no such consent, release or discharge
--------
shall have effect until the Borrower and the Guarantors shall have received a
fully executed copy of the Notice of Assignment and Acceptance relating to
such assignment and (ii) Schedule II shall be deemed amended to give effect
to such assignment. The Borrower agrees that each such disposition will give
rise to a direct obligation of the Borrower to any such assignee.
(d) The Borrower and each Guarantor authorizes each Bank to
disclose to any prospective assignee or participant and any assignee or
participant any and all financial information in such Bank's possession
concerning the Borrower, each Guarantor and this Agreement; provided,
--------
however, that, prior to any such disclosure, the assignee or participant or
-------
proposed assignee or participant shall agree to preserve the confidentiality
of any confidential information relating to the Borrower and each Guarantor
received by it from such Bank in accordance with Section 12.10.
(e) Any Bank which sells or grants participations in any Loans or
its Commitment may not grant to the participants the right to vote other than
on amendments, consents, waivers, modifications or other actions which change
the principal amount of, postpone the scheduled maturity of, or decrease the
interest rates applicable to, any Loans under, or increase the amount of,
such Commitment (except with respect to participating Affiliates actually
controlled by, controlling or under common control with, such Bank);
provided, however, that as between the Bank and the Borrower, only the Bank
-------- -------
shall be entitled to cast such votes.
(f) No participant in any Bank's rights or obligations shall be
entitled to receive any greater payment
-62-
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.
(g) The Administrative Agent shall maintain at its address
referred to in Section 12.2 a copy of each Notice of Assignment and
Acceptance received by it and a register, containing the terms of each Notice
of Assignment and Acceptance, for the recordation of the names and addresses
of each Bank and the Commitment of, and principal amount of the Loans owing
to, each Bank from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Guarantors, the Banks, the Facility Agents and
the Managing Agents may treat each Person whose name is recorded in the
Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower, the Guarantors,
any Bank, any Facility Agent or any Managing Agent at any reasonable time and
from time to time upon reasonable prior notice.
12.8. GOVERNING LAW; SEVERABILITY. THIS AGREEMENT AND THE RIGHTS
---------------------------
AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. WHEREVER POSSIBLE, EACH
PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED IN SUCH MANNER AS TO BE
EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS
AGREEMENT SHALL BE PROHIBITED BY OR INVALID UNDER APPLICABLE LAW, SUCH
PROVISION SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR
INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE
REMAINING PROVISIONS OF THIS AGREEMENT.
12.9. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
------------------------------------------------
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY DOCUMENT RELATED HERETO MAY BE BROUGHT IN THE COURTS OF THE STATE OF
NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER,
VIACOM INC. AND VIACOM INTERNATIONAL HEREBY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF
-63-
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 Loan Party 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 such Loan Party at its address specified for notices in or pursuant to
Section 11.2 hereof, such service to become effective 30 days after such
mailing.
(c) Nothing contained in this Section 12.9 shall affect the right
of any Managing Agent, any Facility Agent or any Bank to serve process in any
other manner permitted by law or commence legal proceedings or otherwise
proceed against the Borrower or either of the Guarantors 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.
12.10. Confidentiality. Each Bank, each Managing Agent and each
---------------
Facility Agent agrees to keep confidential information obtained by it
pursuant hereto (or otherwise obtained from the Loan Parties 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 will 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 Loans or Commitments or potential assignees or participants of the
Loans or Commitments who in each case agree in writing to be bound by the
provisions of this sentence or (iv) to the extent that such information has
otherwise been disclosed or made public other than by such Person, or such
Person's employees, counsel, representatives or agents, in violation of this
Section 12.10.
-64-
12.11. Section Titles. The Section titles contained in this
--------------
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
12.12. Execution in Counterparts. This Agreement may be executed
-------------------------
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
12.13. Consent. (a) On the Cable Transaction Effective Date,
-------
Viacom International may assign all of its rights and obligations hereunder
to VII Services (which will change its name to Viacom International Inc.) if
in connection therewith VII Services (i) assumes all of the obligations of
Viacom International hereunder and (ii) receives an assignment of the Non
Cable Businesses. VII Services will become a Guarantor (as successor to
Viacom International) and Viacom International will be released from all of
its obligations hereunder.
(b) Prior to the expiration of the Exchange Offer, Viacom
International may borrow $1.7 billion from a syndicate of banks on terms
permitted pursuant to the Transaction Documents (as listed in Schedule III)
substantially in the form of those in effect on November 17, 1995 and may
grant such banks a Lien on such funds until they are released to Viacom
International on the date of consummation of the Exchange Offer and a Lien on
rights under the Subscription Agreement referred to in Schedule III.
(c) After the Cable Transaction Effective Date, VII Services may
hold certain cable franchises for the benefit of Viacom International until
regulatory approvals are obtained and may assign the receivables related to
such franchises to the banks lending to Viacom International.
(d) For purposes of this Agreement, the $1.7 billion loan to
Viacom International shall not be considered Indebtedness of Viacom Inc. or
any of its Subsidiaries.
To the extent any of the matters described in (a) - (d) of this
Section 12.13 are otherwise inconsistent with the other terms of this
Agreement, this Section 12.13 shall constitute a waiver of the provisions
hereof to the extent necessary to permit the Cable Transaction.
-65-
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed as of the date first above written.
VIACOM FILM FUNDING COMPANY INC.,
as Borrower
By: /s/ Vaughn A. Clarke
---------------------------------
Name: Vaughn A. Clarke
Title: Executive Vice President,
Treasurer
Guarantors
----------
VIACOM INC., as Guarantor
By: /s/ Vaughn A. Clarke
---------------------
Name: Vaughn A. Clarke
Title: Senior Vice President,
Treasurer
VIACOM INTERNATIONAL INC., as
Guarantor
By: /s/ Vaughn A. Clarke
---------------------
Name: Vaughn Clarke
Title: Senior Vice President,
Treasurer
-66-
Managing Agents
---------------
THE BANK OF NEW YORK, as Managing
Agent, the Documentation Agent and
a Bank
By: /s/ Geoffrey C. Brooks
--------------------------------
Name: Geoffrey C. Brooks
Title: Vice President
CITIBANK, N.A., as Managing Agent,
the Aministrative Agent and a Bank
By: /s/ Margaret C. Ullrich
--------------------------------
Name: Margaret C. Ullrich
Title: Vice President
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Managing Agent and a
Bank
By: /s/ R. Blake Witherington
--------------------------------
Name: R. Blake Witherington
Title: Vice President
BANK OF AMERICA NT&SA, as Managing
Agent and a Bank
By: /s/ Amy S. Trapp
--------------------------------
Name: Amy Trapp
Title: Vice President
-67-
Syndication Agent
-----------------
JP MORGAN SECURITIES INC., as the
Syndication Agent
By: /s/ Barbara J. Asch
-------------------------------
Name: Barbara J. Asch
Title: Managing Director
Agents
------
THE FIRST NATIONAL BANK OF BOSTON,
as Agent and a Bank
By: /s/ Jennifer Buras
-------------------------------
Name: Jennifer Buras
Title: Vice President
THE BANK OF NOVA SCOTIA, as Agent
and a Bank
By: /s/ Vincent J. Fitzgerald,
-------------------------------
Name: Vincent J. Fitzgerald, Jr.
Title: Authorized Signatory
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as Agent and a Bank
By: /s/ Mary Cameron
-------------------------------
Name: Mary Cameron
Title: Vice President
-68-
CANADIAN IMPERIAL BANK OF COMMERCE,
as Agent and a Bank
By: /s/ P.G. Smith
--------------------------------
Name: Peter Smith
Title: Managing Director
CREDIT LYONNAIS NEW YORK BRANCH as
Agent and a Bank
By: /s/ Mark D. Thorsheim
--------------------------
Name: Mark Thorsheim
Title: Vice President
CREDIT SUISSE, as Agent and a Bank
By: /s/ J. Hamilton Crawford
--------------------------------
Name: J. Hamilton Crawford
Title: Associate
CREDIT SUISSE, as Agent and a Bank
By: /s/ Juerg Johner
--------------------------------
Name:
Title:
THE FUJI BANK, LIMITED, NEW YORK
BRANCH, as Agent and a Bank
By: /s/ Katsunori Nozawa
--------------------------------
Name:
Title:
-69-
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as Agent and a Bank
By: /s/ Junri Oda
--------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, as Agent and a Bank
By: /s/ John A. Krob
--------------------------------
Name: John A. Krob
Title: Deputy General Manager
MELLON BANK, N.A., as Agent and a
Bank
By: /s/ G. Louis Ashley
--------------------------------
Name: G. Louis Ashley
Title: First Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as Agent and a Bank
By: /s/ Patricia Loret de Mola
--------------------------------
Name: Patricia Loret de Mola
Title: Vice President
THE NIPPON CREDIT BANK, LTD., LOS
ANGELES AGENCY, as Agent and a Bank
By: /s/ Shinsuke Baba
-------------------------------
Name:
Title:
-70-
ROYAL BANK OF CANADA, as Agent and
a Bank
By: /s/ Barbara Meijer
-------------------------------
Name: Barbara E. Meijer
Title: Manager
THE SAKURA BANK, LIMITED, as Agent
and a Bank
By: /s/ Yasuhiro Terada
----------------------------------
Name: Yasuhiro Terada
Title: Senior Vice President
THE SANWA BANK, LIMITED., NEW YORK
BRANCH, as Agent and a Bank
By: /s/ Dominic J. Sorresso
----------------------------------
Name: Dominic J. Sorresso
Title: Vice President
SOCIETE GENERALE, as Agent and a Bank
By: /s/ Elaine Khalil
----------------------------------
Name: Elaine Khalil
Title: Vice President
THE SUMITOMO BANK, LIMITED, NEW YORK
BRANCH, as Agent and a Bank
By: /s/ Yoshinori Kawamura
----------------------------------
Name: Yoshinori Kawamura
Title: Joint General Manager
-71-
TORONTO DOMINION (NEW YORK), INC., as
Agent and a Bank
By: /s/ Jorge Garcia
----------------------------------
Name:
Title:
-72-
SCHEDULE I
LIST OF LENDING OFFICES
-----------------------
BANK
----
The Bank of New York Domestic Lending Office:
The Bank of New York
One Wall Street
16th Floor
New York, New York 10286
Eurodollar Lending Office:
Same
Citibank, N.A. Domestic Lending Office:
Citibank, N.A.
399 Park Avenue
New York, New York 10043
Eurodollar Lending Office:
Same
Morgan Guaranty Trust Company Domestic Lending Office:
of New York
Morgan Guaranty Trust Company of
New York
60 Wall Street
New York, New York 10260-0060
Attention Loan Department
Telex #177615 MGT VT
Eurodollar Lending Office:
Morgan Guaranty Trust
Company of New York
Nassau, Bahamas Office
c/o J.P. Morgan Services
Loan Operations - 3rd Floor
500 Stanton Christiana Road
Newark, Delaware 19713
-73-
BANK
----
Bank of America NT&SA Domestic Lending Office:
Bank of America NT&SA
1850 Gateway Boulevard
4th Floor
Concord, California 94520
Eurodollar Lending Office:
Same
The First National Bank Domestic Lending Office:
of Boston
The First National Bank of
Boston
Mail Stop 01-08-08
100 Federal Street
Boston, Massachusetts 02110
Eurodollar Lending Office:
Same
The Bank of Nova Scotia Domestic Lending Office:
One Liberty Plaza
New York, New York 10006
Eurodollar Lending Office:
Same
The Chase Manhattan Bank Domestic Lending Office:
(National Association)
The Chase Manhattan Bank
(National Association)
One Chase Manhattan Plaza
4th Floor
New York, New York 10081
Eurodollar Lending Office:
Same
-74-
BANK
----
Canadian Imperial Bank Domestic Lending Office:
of Commerce
Canadian Imperial Bank of
Commerce
U.S. Media Group
425 Lexington Avenue
New York, New York 10017
Eurodollar Lending Office:
Same
Credit Lyonnais Domestic Lending Office:
Credit Lyonnais
New York Branch
1301 Avenue of the Americas
18th Floor
New York, New York 10019-6022
Eurodollar Lending Office:
Same
Credit Suisse Domestic Lending Office:
Credit Suisse
Tower 49
12 East 49th Street
44th Floor
New York, New York 10017
The Fuji Bank, Limited, New York Domestic Lending Office:
Branch
The Fuji Bank, Limited
New York Branch
Two World Trade Center
79th Floor
New York, New York 10048
Eurodollar Lending Office:
Same
-75-
BANK
----
The Industrial Bank of Domestic Lending Office:
Japan, Limited
The Industrial Bank of Japan,
Ltd.
245 Park Avenue, 23rd Floor
New York, New York 10167
Eurodollar Lending Office:
Same
The Long-Term Credit Domestic Lending Office:
Bank of Japan, Limited
The Long-Term Credit Bank of
Japan, Limited
165 Broadway
49th Floor
New York, New York 10006
Eurodollar Lending Office:
Same
Mellon Bank, N.A. Domestic Lending Office:
Mellon Bank, N.A.
One Mellon Bank Center
Room 4440
Pittsburgh, Pennsylvania 15258
Eurodollar Lending Office:
Same
The Mitsubishi Trust & Banking Domestic Lending Office:
Corporation
The Mitsubishi Trust & Banking
Corp.
520 Madison Avenue
26th Floor
New York, New York 10022
Eurodollar Lending Office:
Same
-76-
BANK
----
The Nippon Credit Bank, Ltd., Domestic Lending Office:
Los Angeles Agency
The Nippon Credit Bank, Ltd.,
Los Angeles Agency
550 South Hope, Suite 2500
Los Angeles, California 90071
Eurodollar Lending Office
Same
Royal Bank of Canada Domestic Lending Office:
Royal Bank of Canada
Media Industries Group
Financial Square
New York, New York 10005-3531
Eurodollar Lending Office:
Same
The Sakura Bank, Limited Domestic Lending Office:
The Sakura Bank, Limited,
New York Branch
277 Park Avenue
45th Floor
New York, New York 10172
Eurodollar Lending Office:
Same
The Sanwa Bank, Limited Domestic Lending Office:
The Sanwa Bank, Limited
New York Branch
Park Avenue Plaza
55 East 52nd Street
24th Floor
New York, New York 10055
Eurodollar Lending Office:
Same
-77-
BANK
----
Societe Generale Domestic Lending Office:
Societe Generale
1221 Avenue of the Americas
New York, New York 10020
Eurodollar Lending Office:
Same
The Sumitomo Bank, Limited, New Domestic Lending Office:
York Branch
The Sumitomo Bank, Limited, New
York Branch
277 Park Avenue
6th Floor
New York, New York 10172
Eurodollar Lending Office:
Same
Toronto Dominion Domestic Lending Office:
(New York), Inc.
Toronto Dominion (New York),
Inc.
909 Fannin Street
Houston, Texas 77010
Eurodollar Lending Office:
Same
-78-
SCHEDULE II
-----------
COMMITMENTS
-----------
Bank Commitment
---- ----------
The Bank of New York $29,000,001.50
Citibank, N.A. $29,000,001.50
Morgan Guaranty Trust $29,000,001.50
Company of New York
Bank of America NT&SA $29,000,001.50
The First National $21,333,333.00
Bank of Boston
The Bank of Nova Scotia $21,333,333.00
The Chase Manhattan Bank (National Association) $21,333,333.00
Canadian Imperial Bank of Commerce $21,333,333.00
Credit Lyonnais New York Branch $21,333,333.00
Credit Suisse $21,333,333.00
The Fuji Bank, Limited, $21,333,333.00
New York Branch
The Industrial Bank of Japan, $21,333,333.00
Limited
The Long Term Credit Bank of $21,333,333.00
Japan, Limited
Mellon Bank $21,333,333.00
Mitsubishi Bank $21,333,333.00
The Nippon Credit Bank, Ltd., $21,333,333.00
Los Angeles Agency
Royal Bank of Canada $21,333,333.00
Sakura Bank $21,333,333.00
Sanwa Bank Limited $21,333,333.00
Societe Generale $21,333,333.00
Sumitomo Bank $21,333,333.00
Toronto Dominion $21,333,333.00
(New York), Inc.
TOTAL $500,000,000.00
-1-
SCHEDULE III
------------
Transaction Documents
---------------------
1. Parents Agreement, dated as of July 24, 1995, among
Viacom, TCI and TCI Sub.
2. Implementation Agreement, dated as of July 24, 1995,
between VII and VII Services.
3. Subscription Agreement, dated as of July 24, 1995,
among VII, TCI and TCI Sub.
-1-
SCHEDULE 1.1
------------
Guarantees Related to Discontinued Operations
PRINCIPAL
AMOUNT
GUARANTOR OBLIGOR TYPE EXPIRY CURRENCY OUTSTANDING
--------- ------- ---- ------ -------- -----------
Viacom Int'l Inc. Simmons 7% IRB's 10/15/17 USD 9,700,000
Manufacturing
Viacom Int'l Inc. CBF Fabrics 7-1/4% IRB's 07/01/97 USD 1,347,100
Guaranteed Joint-Venture Credit Facilities
MAXIMUM
TOTAL FACILITY GUARANTEE
GUARANTOR OBLIGOR TYPE EXPIRY CURRENCY SIZE* EXPOSURE*
--------- ------- ---- ------ -------- -------------- ---------
Viacom Int'l Inc. UCI (UK) Term Loan 9/30/97 Pounds Sterling 32,899,000 16,449,500
Viacom Int'l Inc. UCI (UK) Revolver 6/11/96 Pounds Sterling 27,000,000 13,500,000
Viacom Int'l Inc. CIC (UK) Revolver 12/6/96 Pounds Sterling 31,000,000 15,500,000
Viacom Int'l Inc. UCI Spain Revolver 4/15/99 Spanish Peseta 5,000,000,000 2,500,000,000
* in foreign
currency
Guarantees: Other
MAXIMUM
TOTAL FACILITY GUARANTEE
GUARANTOR OBLIGOR TYPE EXPIRY CURRENCY SIZE EXPOSURE
--------- ------- ---- ------ -------- ------------- --------
Viacom Inc. Panthers Invest. Venture Revolver 06/01/96 USD 20,000,000 20,000,000
Viacom Inc. Pavillon Partners Promissory 07/01/05 USD 23,381,342 11,690,671
Note
-1-
SCHEDULE 9.1(A)
---------------
SATELLITE TRANSPONDER LIENS
---------------------------
None.
SCHEDULE 9.1(B)
---------------
LIENS
-----
None.
SCHEDULE 9.6
------------
SUBSIDIARY INDEBTEDNESS
TOTAL
FACILITY
OBLIGOR TYPE EXPIRE CURRENCY SIZE
------- ---- ------ -------- ----
Virgin Interactive Revolver 03/31/97 US Dollars 100,000,000
Entertainment Inc.
Virgin Interactive
Entertainment, Inc. Revolver 04/30/05 Pounds Sterling 10,000,000*
*In foreign currency
-1-
EXHIBIT A
NOTICE OF BORROWING
[Date]
Citibank, N.A.
as Administrative Agent for
the Banks parties to the
Credit Agreement referred to below
399 Park Avenue
New York, New York 10021
Attention: Mr. Robert F. Parr
Ladies and Gentlemen:
The undersigned refers to the Credit Agreement, dated as of May 10,
1996, among Viacom Film Funding Company Inc., as Borrower; Viacom Inc. and
Viacom International Inc. as Guarantors; the Banks parties thereto 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; and the Banks identified as Agents and Banks on the signature
pages thereof (such agreement, as it may be amended, supplemented or
otherwise modified being the "Credit Agreement", the terms defined therein
being used herein as therein defined), and hereby gives you notice,
irrevocably, pursuant to Section 2.2 of the Credit Agreement that the under-
signed hereby requests Borrowing under the Credit Agreement (the "Proposed
Borrowing"), and in that connection sets forth below the information relating
to such Proposed Borrowing as required by Section 2.2(a) of the Credit
Agreement:
(i) The Business Day of the Proposed Borrowing is ___________,
19__.
(ii) The aggregate amount of the Borrowing constituting the
Borrowing is $_____________ principal
A-1
amount of [Base Rate Loans] [Eurodollar Rate Loans having an Interest Period
of _____ months].
Very truly yours,
Viacom Film Funding Company Inc.
By:______________________
Name:
Title:
A-2
EXHIBIT B
NOTICE OF
CONVERSION OR CONTINUATION
[Date]
Citibank, N.A.
as Administrative Agent
for the Banks parties to the
Credit Agreement referred to below
399 Park Avenue
New York, New York 10021
Attention: Mr. Robert F. Parr
Ladies and Gentlemen:
In connection with the Credit Agreement, dated as of May 10, 1996,
among Viacom Film Funding Company Inc., as Borrower; Viacom International
Inc. and Viacom Inc. as Guarantors; the Banks parties thereto, 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; and the
Banks identified as Agents on the signature pages thereof (such agreement, as
it may be amended, supplemented or otherwise modified being the "Credit
Agreement", the terms defined therein being used herein as therein defined),
this notice represents the Borrower's request pursuant to Section 3.1 of the
Credit Agreement to [convert] [continue] $__________ in principal amount of
presently outstanding Loans bearing interest at a rate based on the [Base
Rate] [Eurodollar Rate having an Interest Period of__________ and ending on
____________, 19__], to Loans bearing interest at a rate based on the [Base
Rate], [Eurodollar Rate], on [___________, 19__] [the last day of such
Interest Period]. [The Interest Period for such amounts requested to be
converted to bear interest at a rate based on the Eurodollar Rate is ___
month(s).]
The undersigned certifies that, before and after giving effect to
the foregoing, no Event of Default has occurred and is continuing or would
result therefrom.
Dated: __________________
Viacom Film Funding Company Inc.
By:______________________
Name:
Title:
B-1
EXHIBIT C
[LETTERHEAD OF MICHAEL D. FRICKLAS]
May 10, 1996
To each of the Banks listed on
Exhibit A hereto parties to
the Film Finance Credit Agreement
described below, and to the
Managing Agents and Facility Agents
parties thereto
Ladies and Gentlemen:
This opinion is furnished to you pursuant to: Section 4.1(d) of
the Film Finance Credit Agreement, dated as of May 10, 1996 (the "Film
Finance Credit Agreement"), among Viacom Film Funding Company Inc., a
Delaware corporation, as Borrower (the "Borrower"); Viacom International and
Viacom Inc. as Guarantors; the Banks parties thereto; The Bank of New York
("BNY"), Citibank, N.A. ("Citibank"), Morgan Guaranty Trust Company of New
York ("Morgan") and Bank of America NT&SA ("BofA"), as Managing Agents; BNY,
as the Documentation Agent; Citibank, as the Administrative Agent; JP Morgan
Securities Inc. ("Morgan Securities"), as the Syndication Agent and the Banks
identified as Agents on the signature pages thereof, as Agents. Terms
defined in the Film Finance Credit Agreement are used herein as therein
defined.
I am Senior Vice President, Deputy General Counsel and Assistant
Secretary of Viacom Inc. I have examined and relied upon executed copies of
the Film Finance Credit Agreement, and the other documents furnished by
Viacom Inc. pursuant to Article IV of the Film Finance Credit Agreement.
I have also examined the originals, or copies certified to my
satisfaction, of such other corporate records of Viacom Inc., each other Loan
Party and each other Material Subsidiary of Viacom Inc., certificates of
public officials, including the Secretary of State of the State of Delaware,
and of officers of Viacom Inc., each other Loan Party and each other Material
Subsidiary of Viacom Inc., and agreements, instruments and documents, as I
have deemed necessary as a basis for the opinions hereinafter expressed. As
to questions of fact material to such opinions, I have, when relevant facts
were not independently established by
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me, relied upon certificates or other evidence satisfactory to me of Viacom
Inc., each other Loan Party and each other Material Subsidiary of Viacom Inc.
or their respective officers or public officials. I have assumed the due
execution and delivery, pursuant to due authorization, by the Banks, the
Managing Agents, the Facility Agents and the Agents of the Film Finance
Credit Agreement. In all such examinations, I have assumed the genuineness
of all signatures on original and certified documents, the authenticity of
all documents submitted to me as original documents and the conformity to
original or certified documents of all documents submitted to me as copies.
Based upon the foregoing, I am of the opinion that:
1. The Borrower, each other Loan Party and each other Material
Subsidiary of Viacom Inc. (i) is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation; (ii) has all requisite corporate power and authority to
conduct its business as now being conducted; (iii) is in compliance with its
articles or certificate of incorporation and by-laws; and (iv) is in
compliance with all applicable Requirements of Law except such non-compliance
as would not have a Material Adverse Effect.
2. Each Loan Party is duly qualified and in good standing as a
foreign corporation under the laws of each jurisdiction in which the failure
so to qualify is reasonably probable to have a Material Adverse Effect.
3. To the best of my knowledge after due inquiry, each of the
other Material Subsidiaries is duly qualified and in good standing as a
foreign corporation under the laws of each jurisdiction in which the failure
so to qualify is reasonably probable to have a Material Adverse Effect.
4. The execution, delivery and performance by each Loan Party of
the Film Finance Credit Agreement:
(i) is within such Loan Party's corporate powers;
(ii) has been duly authorized by all necessary corporate action;
(iii) does not (A) contravene such Loan Party's certificate of
incorporation or by-laws, (B) violate any order or any decree
of any court or governmental instrumentality, except
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those as to which the failure to comply would not have a
Material Adverse Effect, (C) conflict with or result in the
breach of, or constitute a default under, any instrument,
document or agreement binding upon and material to such Loan
Party, or (D) result in the creation or imposition of any Lien
upon any of the Property of Viacom Inc. or any of its
Subsidiaries;
(iv) does not require the consent of, authorization by, approval
of, notice to, or filing or registration with any Governmental
Authority (except for filing copies of the Film Finance Credit
Agreement with the Securities and Exchange Commission); and
(v) does not violate any law, rule or regulation applicable to
such Loan Party (including, without limitation, Regulations G,
T, U or X of the Board of Governors of the Federal Reserve
System).
5. The Film Finance Credit Agreement has been duly executed and
delivered by each Loan Party that is a party thereto.
6. The Film Finance Credit Agreement is the legal, valid and
binding obligation of each Loan Party enforceable against such Loan Party in
accordance with its terms.
7. There are no pending or, to the best of my knowledge, overtly
threatened actions, investigations or proceedings against or affecting Viacom
Inc. or any of its Subsidiaries before any court, governmental agency or
arbitrator in which, individually or in the aggregate, there is a reasonable
probability of an adverse decision that could have a Material Adverse Effect
or result in a Material Credit Agreement Change.
8. To the best of my knowledge no Environmental Lien has attached
to any Property of Viacom Inc. or any of its Subsidiaries which would have a
Material Adverse Effect.
9. Viacom Inc. and its Subsidiaries have all the FCC Licenses
necessary for the conduct of their respective businesses as now being
conducted. Viacom Inc. and its Subsidiaries are in substantial compliance
with the Federal Communications Act of 1934, as amended, and with the rules
and regulations thereunder except for such non-compliance
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which would not have a Material Adverse Effect. Neither Viacom Inc. nor any
of its Subsidiaries is a party to, nor to the best of my knowledge subject
to, any investigation, notice of violation, order or complaint issued by or
before the FCC, in which there is a reasonable probability of an adverse
decision which is reasonably probable to have a Material Adverse Effect.
Viacom Inc. and its Subsidiaries have all the Franchises necessary for the
conduct of their businesses as now being conducted and are in substantial
compliance with the requirements of such Franchises, except for such non-
compliance which would not have a Material Adverse Effect.
The opinions set forth above are subject to the following
qualifications:
(a) My opinion in paragraph 6 above is subject to the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally (including, without
limitation, all laws relating to fraudulent transfers).
(b) My opinion in paragraph 6 above is subject to the effect of
general principles of equity, including (without limitation) concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law).
(c) My opinion in paragraph 6 above is subject to any public
policy consideration or court decisions with respect to the securities
laws that may limit the rights of any Bank, any Agent or any other
Person to obtain indemnification.
(d) My opinions expressed above are limited to the law of the
State of New York, the General Corporation Law of the State of Delaware
and the Federal law of the United States, and I do not express any
opinion herein concerning any other law. Without limiting the
generality of the foregoing, I express no opinion as to the effect of
the law of any jurisdiction other than the State of New York wherein any
Bank may be located or wherein enforcement of the Agreement may be
sought that limits the rates of interest legally chargeable or
collectible. I am a member of the bar of the State of New York only and
do not by this opinion represent otherwise.
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This opinion is furnished to you by me as counsel to the Loan
Parties pursuant to Section 4.1(d) of the Film Finance Credit Agreement, is
solely for your benefit and may not be relied upon by any other party without
my prior written consent.
Very truly yours,
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EXHIBIT A
to the Opinion dated May 10, 1996
of Michael D. Fricklas
Banks
-----
The Bank of New York
Citibank, N.A.
Morgan Guaranty Trust Company of New York
Bank of America NT&SA
JP Morgan Securities Inc.
The First National Bank of Boston
The Bank of Nova Scotia
The Chase Manhattan Bank (National Association)
Canadian Imperial Bank of Commerce
Credit Lyonnais, New York Branch
Credit Suisse
The Fuji Bank, Limited, New York Branch
The Industrial Bank of Japan, Limited
The Long-Term Credit Bank of Japan, Limited
Mellon Bank, N.A.
Mitsubishi Trust and Banking Corporation
The Nippon Credit Bank, Ltd., Los Angeles Agency
Royal Bank of Canada
The Sakura Bank, Limited
The Sanwa Bank, Limited, New York Branch
Societe Generale
The Sumitomo Bank, Limited, New York Branch
Toronto Dominion Bank, Houston Agency
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EXHIBIT D
FORM OF
ASSIGNMENT AND ACCEPTANCE
[Date]
Reference is made to the credit agreement, dated as of May 10, 1996
(the "Credit Agreement"), among Viacom Film Funding Company Inc., as Borrower
(the "Borrower"); Viacom International and Viacom Inc. as Guarantors (each a
"Guarantor") the banks parties thereto, as Banks; 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 and the Banks identified
as Agents on the signature pages thereof, as Agents. Terms defined in the
Credit Agreement are used herein as therein defined.
____________________________ (the "Assignor") and
______________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that interest in and
to all of the Assignor's rights and obligations under the Credit Agreement as
of the effective date of the Assignment and Acceptance (the "Assignment and
Acceptance Effective Date") (as determined below) equal to the percentage
interest specified on Schedule II hereto of all outstanding rights and
obligations under the Credit Agreement specified on Schedule II hereto.
After giving effect to such sale and assignment, the Assignee's Commitment
shall be as set forth on Schedule I hereto.
2. The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
document furnished pursuant thereto; and (iii) makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Borrower or either Guarantor or the performance or
observance by the Borrower
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or the Guarantors of any of their obligations under the Credit Agreement or
any other document furnished pursuant thereto.
3. The Assignee confirms and agrees as follows: (i) that it has
received a copy of this Assignment and Acceptance Agreement, together with
copies of the financial statements referred to in Section 8.8 of the Credit
Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (ii) that it will, independently and without
reliance upon the Administrative Agent, any Managing Agent, the Assignor 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 the Credit Agreement; (iii) that it appoints and
authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement as are
delegated to the Administrative Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; (iv) that it will perform
in accordance with its terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Bank; and (v) that
its Domestic Lending Office (and address for notices) and Eurodollar Lending
Office are the offices set forth beneath its name on the signature pages
hereof.
4. The Assignment and Acceptance Effective Date shall be
_____________. Following the execution of this Assignment and Acceptance, it
shall be delivered to the Administrator for acceptance by the Administrator
together with a recording fee in the amount $3,000.
5. [This Assignment and Acceptance is subject to the prior written
consent of the Borrower.]* Upon such [consent by the Borrower and]
acceptance and the recording thereof in the Register by the Administrative
Agent, as of the Assignment and Acceptance Effective Date (i) the Assignee
shall be a party to the Credit Agreement, and shall have the rights and
obligations of a Bank under the Parent Facility and (ii) the Assignor shall,
to the extent provided
--------------------
* To be inserted if the Assignee is not a Bank (as defined in each of the
Credit Agreement, the September Agreement and each of the July
Agreements), an Affiliate of such Bank or a Federal Reserve Bank
immediately prior to the Assignment and Acceptance Effective Date.
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in this Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent,
from and after the Assignment and Acceptance Effective Date, the
Administrator shall make all payments under the Credit Agreement in respect
of the interests assigned hereby (including, without limitation, all payments
of principal, interest and fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments
under the Credit Agreement for periods prior to the Assignment and Acceptance
Effective Date directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. The Assignee agrees not to sell any assignments of, or grant
participations in, its Commitments or its Loans except in accordance with the
Credit Agreement.
[ASSIGNOR]
By:___________________________
Name:
Title:
[ASSIGNEE]
By:___________________________
Name:
Title:
Domestic Lending Office:
______________________________
______________________________
______________________________
Eurodollar Lending Office:
______________________________
______________________________
______________________________
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[Approved this ____ day
of _______________, 19__
Viacom Film Funding Company Inc.
By:______________________
Name:
Title: ]*
Accepted this ____ day
of _______________, 19__
CITIBANK, N.A.,
as Administrative Agent
By:______________________
Name:
Title:
--------------------
* To be inserted if the Assignee is not a Bank (as defined in each of the
Credit Agreement, the September Agreement and each of the July
Agreements), an Affiliate of such Bank or a Federal Reserve Bank
immediately prior to the Assignment and Acceptance Effective Date.
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SCHEDULE I
TO
ASSIGNMENT AND ACCEPTANCE
DATED [DATE], 1996
Type of Commitment and Loan Assigned: [Subsidiary]
------------------------------------
Portion Assigned: _____________%
----------------
Assignee's Commitment _____________%
---------------------
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