{"id":43545,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/release-and-indemnification-agreement-viacom-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"release-and-indemnification-agreement-viacom-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/release-and-indemnification-agreement-viacom-inc-and.html","title":{"rendered":"Release and Indemnification Agreement &#8211; Viacom Inc. and Blockbuster Inc."},"content":{"rendered":"<pre>\n                     RELEASE AND INDEMNIFICATION AGREEMENT\n\n\n\n                          DATED AS OF AUGUST 16, 1999\n\n\n\n                                 BY AND BETWEEN\n\n\n\n                                  VIACOM INC.\n\n\n\n                                      AND\n\n\n\n                                BLOCKBUSTER INC.\n\n \n\n\n \n                               TABLE OF CONTENTS\n\n\n                                                                  Page\n                                                                  ----\n\n\n                                   ARTICLE I\n                                  DEFINITIONS\n\n\nSection 1.01.  Definitions.........................................1\n\n                                  ARTICLE II\n                                INDEMNIFICATION\n\n\nSection 2.01.  Indemnification by Blockbuster......................4\nSection 2.02.  Indemnification by Viacom...........................5\nSection 2.03.  Certain Tax Matters.................................5\nSection 2.04.  Registration Indemnification........................5\nSection 2.05.  Calculation of Indemnification Payments.............7\nSection 2.06.  Indemnification Procedures..........................8\nSection 2.07.  Remedies Cumulative.................................8\n\n                                  ARTICLE III\n                                    RELEASE\n\nSection 3.01.  General Release.....................................8\n\n                                  ARTICLE IV\n                                 MISCELLANEOUS\n\nSection 4.01.  Further Agreements..................................9\nSection 4.02.  Amendments..........................................9\nSection 4.03.  Successors and Assignment...........................9\nSection 4.04.  Consolidation, Merger and Sale of Assets............9\nSection 4.05.  Severability.......................................10\nSection 4.06.  Entire Agreement...................................10\nSection 4.07.  Notices............................................10\nSection 4.08.  Governing Law......................................11\nSection 4.09.  Counterparts.......................................12\n \n\n\n\n \n                     RELEASE AND INDEMNIFICATION AGREEMENT\n                     -------------------------------------\n\n          RELEASE AND INDEMNIFICATION AGREEMENT (this 'Agreement') dated as of\n                                                       ---------              \nAugust 16, 1999 by and between VIACOM INC., a Delaware corporation ('Viacom')\n                                                                     ------  \nand BLOCKBUSTER INC., a Delaware corporation and an indirect, wholly owned\nsubsidiary of Viacom ('Blockbuster').\n                       -----------   \n\n                                    RECITALS\n\n          WHEREAS, on September 29, 1994, Viacom acquired the businesses and\noperations of Blockbuster Entertainment Corporation, a Delaware Corporation\n('BEC')  through a merger of BEC with and into Viacom (the 'Merger');\n-----                                                       ------   \n\n          WHEREAS, since the Merger, Viacom has owned and operated the acquired\nbusinesses and operations of BEC and other related businesses and operations and\nhas made significant improvements and contributions thereto and has transferred\ncertain of the assets, businesses and operations acquired in the Merger and\ncertain other related assets, businesses and operations to Blockbuster and its\nSubsidiaries (collectively, the 'Asset Transfers');\n                                 ---------------   \n\n          WHEREAS, Viacom presently intends to split-off Blockbuster in a tax-\nfree transaction;\n\n          WHEREAS, prior to such split-off, Blockbuster proposes to issue shares\nof its common stock in an initial public offering registered under the\nSecurities Act of 1933, as amended;\n\n          WHEREAS, in consideration of the foregoing and as a condition to the\nwillingness of the parties to proceed with the initial public offering,\nBlockbuster has agreed to release and indemnify Viacom, and Viacom has agreed to\nrelease and indemnify Blockbuster, as more fully described below; and\n\n          NOW, THEREFORE, in consideration of the mutual covenants set forth in\nthis Agreement and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the parties hereto agree as\nfollows:\n\n                                   ARTICLE I\n                                  DEFINITIONS\n\n           Section 1.01. Definitions.  As used in this Agreement, the following\n                         -----------                                           \nterms shall have the following meanings:\n\n          'Affiliates' means, with respect to any specified Person, any Person\n           ----------                                                         \nthat directly, or indirectly through one or more intermediaries, controls, or is\ncontrolled by, or is under common control with such specified Person; provided,\n                                                                      -------- \nhowever, that prior to the Split-Off, \n-------\n\n \nAffiliates of Blockbuster or Viacom shall only include Persons who would be\naffiliates of Blockbuster or Viacom, respectively, assuming that the Split-Off\nhad occurred immediately prior to the determination as to whether such Person\nwas an affiliate of Blockbuster or Viacom, respectively.\n\n          'Agreement' has the meaning ascribed thereto in the Preamble.\n           ---------                                                   \n\n          'Asset Transfers' has the meaning ascribed thereto in the Recitals.\n           ---------------                                                   \n\n          'BEC' has the meaning ascribed thereto in the Recitals.\n           ---                                                   \n\n          'Blockbuster' has the meaning ascribed thereto in the Preamble.\n           -----------                                                   \n\n          'Blockbuster Business' has the meaning ascribed thereto in Section\n           --------------------                                             \n2.01(a)(i).\n\n          'Blockbuster Registration Statement' means any registration statement\n           ----------------------------------                                  \n(or any preliminary or final prospectus included therein), information\nmemorandum or other offering document relating to a primary offer and sale of\nsecurities of Blockbuster prepared by Blockbuster or at its direction, in each\ncase including all exhibits thereto and as supplemented and amended from time to\ntime.\n\n          'Blockbuster Subsidiary Obligors' means, collectively, any direct or\n           -------------------------------                                    \nindirect Subsidiary of Blockbuster that is or becomes an obligor on, guarantees,\nor otherwise becomes directly or indirectly liable with respect to any Senior\nIndebtedness of Blockbuster.\n\n          'Indemnified Party' means any Person who is entitled to received\n           -----------------                                              \npayment or defense from an Indemnifying Party pursuant to this Agreement.\n\n          'Indemnifying Party' means any party who is required to pay or defend\n           ------------------                                                  \nany other Person pursuant to this Agreement.\n\n          'IPO' means the initial public offering by Blockbuster of shares of\n           ---                                                               \nBlockbuster Class A Common Stock as contemplated by the IPO Registration\nStatement.\n\n          'IPO and Split-Off Agreement' means Initial Public Offering and Split-\n           ---------------------------                                         \nOff Agreement date as of the dated hereof among Viacom, Viacom International\nInc. and Blockbuster.\n\n          'IPO Registration Statement' means the Registration Statement on Form\n           --------------------------                                          \nS-1, Registration No. 333-77899, of Blockbuster, including all exhibits thereto\nand as supplemented and amended from time to time.\n\n                                       2\n\n \n          'Intercompany Agreements' means this Agreement, the IPO and Split-Off\n           -----------------------                                             \nAgreement and the Transition Services Agreement, the Registration Rights\nAgreement and the Tax Matters Agreement, each dated the date hereof by and\nbetween the parties.\n\n          'Losses' has the meaning ascribed thereto in Section 2.01(a).\n           ------                                                      \n\n          'Merger' has the meaning ascribed thereto in the Recitals.\n           ------                                                   \n\n          'Person' means any individual, corporation, limited or general\n           ------                                                       \npartnership, limited liability company, joint venture association, joint stock\ncompany, trust unincorporated organization or government or any agency or\npolitical subdivision thereof.\n\n          'Representatives' means directors, officers, employees, agents,\n           ---------------                                               \nconsultants, advisors, accountants, attorneys and representatives.\n\n          'Securities Act' means the Securities Act of 1933, as amended from\n           --------------                                                   \ntime to time, together with the rules and regulations promulgated thereunder.\n\n          'Senior Indebtedness' means, with respect to a Person, (i) all senior\n           -------------------                                                 \nindebtedness of such Person for borrowed money, (ii) all senior obligations of\nsuch Person evidenced by bonds, debentures, notes or other similar instruments\nand (iii) all senior indebtedness of others secured by a lien on any property of\nsuch person.\n\n          'Split-Off' means the distribution of Blockbuster Common Stock by\n           ---------                                                       \nViacom in one or more transactions occurring after the IPO that collectively\nhave the effect that all or a substantial part of shares of Blockbuster Common\nStock held by Viacom are distributed to all or some of the stockholders of\nViacom, whenever such transaction(s) shall occur.\n\n          'Split-Off Registration Statement' means any registration statement\n           --------------------------------                                  \n(or any preliminary or final prospectus included therein), information\nmemorandum or other offering document relating to the Split-Off, in each case\nincluding all exhibits thereto and as supplemented and amended from time to\ntime.\n\n          'Subsidiary' means with respect to any Person, any other Person a\n           ----------                                                      \nmajority of the equity ownership or voting stock of which is at the time owned,\ndirectly or indirectly, by such Person and\/or one or more other Subsidiaries of\nsuch Person; provided, however, that prior to the Split-Off, a Subsidiary of\n             --------  -------                                              \nViacom shall only include Persons who would be a Subsidiary of Viacom assuming\nthe Split-Off has occurred immediately prior to the determination as to whether\nsuch Person was a Subsidiary of Viacom.\n\n          'Transfer Costs' means any payments, costs or expenses paid to a third\n           --------------                                                       \nparty associated with the Asset Transfers.\n\n                                       3\n\n \n          'Viacom' has the meaning ascribed thereto in the Preamble.\n           ------                                                   \n\n          'Viacom Business' has the meaning ascribed thereto in Section 2.02.\n           ---------------                                                   \n\n          'Viacom Guarantees' means guarantees of Viacom and its Subsidiaries\n           -----------------                                                 \nwith respect to obligations arising out of or relating to the Blockbuster\nBusiness, including without limitation guarantees or other obligations under\nleases or other agreements relating to video and music stores, offices,\nwarehouses and equipment.\n\n                                  ARTICLE II\n                                INDEMNIFICATION\n\n          Section 2.01.  Indemnification by Blockbuster.    (a)  Blockbuster and\n                         ------------------------------                         \nany Blockbuster Subsidiary Obligor jointly and severally agree to indemnify and\nhold harmless Viacom and its past, present or future Subsidiaries and Affiliates\nand any of their past, present or future Representatives, heirs, executors and\nany of their successors and assigns against any and all payments, losses,\nliabilities, damages, claims, and expenses (including without limitation,\nattorney's fees and expenses incurred in good faith) and costs whatsoever\n                                                                         \n('Losses'), as incurred, arising out of or relating to:\n--------                                               \n\n          (i)   all assets, businesses and operations conducted, operated,\n     managed or owned, in whole or in part, by (A) BEC or any Person that was\n     any at time a Subsidiary or Affiliate of BEC, (B) Viacom or any Person that\n     was any at time a Subsidiary or Affiliate of Viacom that were the\n     responsibility of the chief executive officer of the Blockbuster\n     Entertainment operating unit of Viacom, (C) Blockbuster or any Person that\n     was at any time a Subsidiary or Affiliate of Blockbuster, or (D) any\n     successor, assign or Representative of any of the foregoing at any time,\n     whether before, at or after the IPO (including without limitation any\n     assets, businesses or operations that were purchased, newly started,\n     discontinued or sold) or any transaction related thereto or causes of\n     action arising therefrom (collectively, the 'Blockbuster Business'); and\n                                                  --------------------       \n\n          (ii)  the Transfer Costs;\n\nprovided that, in case of clause (i) above, assets, businesses and operations\n--------                                                                     \nreferred to therein shall (A) include, without limitation, home video retailing\n(whether videocassette, laserdisc, digital versatile disc, digital video express\nor otherwise and whether rental or sale or in a physical store or over the\nInternet), video game retailing (whether rental or sale), music retailing, the\noperation of children and adult entertainment centers (but this indemnification\nshall not apply to assets, businesses and operations conducted by Paramount\nParks) and the development, marketing, sale and management of franchises related\nto the foregoing assets, businesses and operations and the Viacom Guarantees and\n(B) exclude all assets, businesses and operations of Spelling Entertainment\nGroup Inc. and its Subsidiaries (including Republic Entertainment Inc. \n\n                                       4\n\n \nand WorldVision Inc.), Showtime Networks Inc.,Virgin Interactive Entertainment\nLimited and Virgin Interactive Entertainment Inc.\n\n          (b) To the extent that a Subsidiary of Blockbuster becomes a\nBlockbuster Subsidiary Obligor, Blockbuster shall cause such Subsidiary to\nbecome a party to this Agreement through an amendment hereto pursuant to which\nsuch Blockbuster Subsidiary Obligor will expressly assume all of the\nobligations, and acquire all of the rights, of Blockbuster under this Agreement.\nSuch assumption of obligations and acquisition of rights shall in no way\ndischarge Blockbuster from any of its obligations hereunder or diminish any of\nBlockbuster's rights hereunder, as the case may be.  Such amendment shall be (i)\nexecuted and delivered to Viacom (and shall become effective) simultaneously\nwith the execution and delivery by such Blockbuster Subsidiary Obligor (and the\neffectiveness) of the documentation pursuant to which it became a Blockbuster\nSubsidiary Obligor and (ii) contain provisions reasonably satisfactory to Viacom\nto maximize the likelihood that such amendment would not be subject to attack\nunder applicable fraudulent conveyance or similar laws.\n\n          (c) The obligations of the parties under this Section 2.01 shall be in\naddition to any liability which any party may have to the other party.\n\n          Section 2.02.  Indemnification by Viacom.  (a) Viacom agrees to\n                         -------------------------                       \nindemnify and hold harmless Blockbuster and its past, present or future\nSubsidiaries and Affiliates and any of their past, present or future\nRepresentatives, heirs and any of their executors, successors and assigns\nagainst any and all Losses, as incurred, arising out of or relating to all\nassets, businesses and operations conducted, operated, managed or owned, in\nwhole or in part, by Viacom or any Person that was at any time a Subsidiary or\nAffiliate of Viacom or any predecessor, successor, assign or Representative of\nany of the foregoing at any time whether before, at or after the IPO (including,\nwithout limitation, any assets, businesses or operations that were purchased,\nnewly started, discontinued or sold)  or any transaction related thereto or\ncauses of action arising therefrom other than the Blockbuster Business and\nTransfer Costs which Blockbuster and any Blockbuster Subsidiary Obligor agree to\nindemnify Viacom pursuant to Section 1.01) (the 'Viacom Business').\n                                                 ---------------   \n\n          (b) The obligations of the parties under this Section 2.02 shall be in\naddition to any liability which any party may have to the other party.\n\n          Section 2.03.  Certain Tax Matters. Notwithstanding anything to the\n                         -------------------                                 \ncontrary herein, the rights and obligations of the parties with respect to\nindemnification for the tax matters that are the subject matter of the Tax\nMatters Agreement dated as of the date hereof between the parties thereto shall\nbe governed solely by such agreement.\n\n          Section 2.04.  Registration Indemnification.    (a) Blockbuster and\n                         ----------------------------                        \nany Blockbuster Subsidiary Obligor jointly and severally agree to indemnify and\nhold harmless Viacom and each Person, if any, who controls Viacom within the\nmeaning of the Securities Act \n\n                                       5\n\n \nand Affiliates and Representatives of each of the foregoing from and against any\nand all Losses (including, without limitation, any legal or other expenses\nincurred in connection with defending or investigating any such action or\nclaim), as incurred, arising out of or relating to any untrue statement or\nalleged untrue statement of a material fact contained in, or incorporated by\nreference into (i) any Blockbuster Registration Statement filed at or prior to\nthe date of the Split-Off, including, without limitation, the IPO Registration\nStatement and (ii) any Split-Off Registration Statement or any omission or\nalleged omission to state therein a material fact required to be stated therein\nor necessary to make the statements therein not misleading, except that\nBlockbuster and any Blockbuster Subsidiary Obligor shall not be liable in any\nsuch case to the extent that any such Losses are arising out of or relating to\nany such untrue statement or omission or alleged untrue statement or omission\nbased upon information relating to Viacom furnished to Blockbuster in writing by\nViacom expressly for use therein. Such indemnity shall remain in full force and\neffect regardless of any investigation made by or on behalf of Viacom and shall\nsurvive the transfer of such securities. In the case of an offering with respect\nto which Viacom has designated the lead or managing underwriters (or Viacom is\noffering securities of Blockbuster directly, without an underwriter), this\nindemnity does not apply to any Loss arising out of or relating to any untrue\nstatement or alleged untrue statement or omission or alleged omission in any\npreliminary prospectus or offering memorandum if a copy of a final prospectus or\noffering memorandum was not sent or given by or on behalf of any underwriter (or\nViacom) to such Person asserting such Loss at or prior to the written\nconfirmation of the sale of the securities of Blockbuster as required by the\nSecurities Act and such untrue statement or omission had been corrected in such\nfinal prospectus or offering memorandum.\n\n          (b) Viacom agrees to indemnify and hold harmless Blockbuster and each\nPerson, if any, who controls Blockbuster within the meaning of the Securities\nAct and Affiliates and Representatives of each of the foregoing from and against\nany and all Losses (including, without limitation, any legal or other expenses\nincurred in connection with defending or investigating any such action or\nclaim), as incurred, arising out of or relating to any untrue statement or\nalleged untrue statement of a material fact contained in, or incorporated by\nreference into, (i) any Blockbuster Registration Statement filed at or prior to\nthe date of the Split-Off, including, without limitation, the IPO Registration\nStatement, (ii) and any Split-Off Registration Statement, or any omission or\nalleged omission to state therein a material fact required to be stated therein\nor necessary to make the statements therein not misleading, but only with\nreference to Losses arising out of or relating to any untrue statement or\nomission or alleged untrue statement or omission based on information relating\nto Viacom furnished to Blockbuster in writing by Viacom expressly for use\ntherein.  Such indemnity shall remain in full force and effect regardless of any\ninvestigation made by or on behalf of Blockbuster and shall survive the transfer\nof such securities.  In the case of an offering with respect to which\nBlockbuster has designated the lead or managing underwriters (or Blockbuster is\noffering securities of Blockbuster directly, without an underwriter), this\nindemnity does not apply to any Loss arising out of or relating to any untrue\nstatement or alleged untrue statement or omission or alleged omission in any\npreliminary prospectus or offering memorandum if a copy of a final prospectus or\noffering memorandum was not sent or given by or on behalf of any underwriter (or\nBlockbuster) to such \n\n                                       6\n\n \nPerson asserting such Loss at or prior to the written confirmation of the sale\nof the securities of Blockbuster as required by the Securities Act and such\nuntrue statement or omission had been corrected in such final prospectus or\noffering memorandum.\n\n          (c) If the indemnification provided for in this Section 2.04 shall for\nany reason be unavailable (other than in accordance with its terms) to an\nIndemnified Party in respect of any Loss referred to therein, then each\nIndemnifying Party shall, in lieu of indemnifying such Indemnified Party,\ncontribute to the amount paid or payable by such Indemnified Party as a result\nof such Loss as between Blockbuster on the one hand and Viacom on the other, in\nsuch proportion as is appropriate to reflect the relative fault of Blockbuster\nand of Viacom in connection with such statements or omissions which resulted in\nsuch Loss as well as any other relevant equitable considerations.  The relative\nfault of Blockbuster on the one hand and of Viacom on the other shall be\ndetermined by reference to, among other things, whether the untrue or alleged\nuntrue statement of a material fact or the omission or alleged omission to state\na material fact relates to information supplied by such party, and the parties'\nrelative intent, knowledge, access to information and opportunity to correct or\nprevent such statement or omission, but not by reference to Viacom's stock\nownership in Blockbuster.  The amount paid or payable by an Indemnified Party as\na result of the Loss in respect thereof, referred to above in this paragraph (c)\nshall be deemed to include, for purposes of this paragraph (c), any legal or\nother expenses reasonably incurred by such Indemnified Party in connection with\ninvestigating or defending any such action or claim.  Blockbuster and Viacom\nagree that it would not be just and equitable if contribution pursuant to this\nSection 2.04 were determined by pro rata allocation or by any other method of\n                                --- ----                                     \nallocation which does not take account of the equitable considerations referred\nto in this paragraph.  Notwithstanding any other provisions of this Section\n2.04, Viacom shall not be required to contribute any amount in excess of the\namount by which the total price at which the securities of Blockbuster were\noffered by Viacom to the public exceeds the amount of any damages which Viacom\nhas otherwise been required to pay by reason of such untrue or alleged untrue\nstatement or omission or alleged omission.  No party guilty of fraudulent\nmisrepresentation (within the meaning of Section 11(f) of the Securities Act)\nshall be entitled to contribution from any party who was not guilty of such\nfraudulent misrepresentation.\n\n          (d) Indemnification and contribution similar to that specified in the\npreceding paragraphs of this Section 2.04 (with appropriate modifications) shall\nbe given by Blockbuster and Viacom with respect to any required registration or\nother qualification of securities under any state law or regulation or\ngovernmental authority.\n\n          (e) The obligations of the parties under this Section 2.04 shall be in\naddition to any liability which any party may otherwise have to the other party.\n \n          Section 2.05.  Calculation of Indemnification Payments.  (a) The\n                         ---------------------------------------          \namount which any Indemnifying Party is required to pay to any Indemnified Party\npursuant to this Agreement shall be reduced (including, but not limited to,\nretroactively) by any recovery, judgment, settlement or other amounts actually\nrecovered, including insurance proceeds, by such \n\n                                       7\n\n \nIndemnified Party with respect to such Losses. If an Indemnified Party shall\nhave received payment with respect to Losses and shall subsequently actually\nreceive a recovery, judgment, settlement or other amount with respect to such\nLosses, then such Indemnified Party shall promptly, but in no event later than\n15 business days after such recovery, judgment, settlement or other amount\nactually received, pay to such Indemnifying Party a sum equal to the lesser of\n(i) the amount of such recovery, judgment, settlement or other amount actually\nreceived or (ii) the amount of payments actually received previously in respect\nof such Loss.\n\n          (b) All amounts which any Indemnifying Party is required to pay to any\nIndemnified Party pursuant to this Agreement shall be calculated on an after-tax\nbasis, taking into account the net present value of any tax cost and\/or tax\nbenefit to the Indemnified Party in connection with such indemnification payment\nand the applicable Loss.\n\n          Section 2.06.  Indemnification Procedures.  The indemnification\n                         --------------------------                      \nprocedures set forth in Section 8.01(b) of the IPO and Split-Off Agreement are\nincorporated herein and made a part hereof for all purposes as if fully set\nforth herein and shall govern the parties' rights and obligations with respect\nthereto.\n\n          Section 2.07.  Remedies Cumulative.  The remedies provided in this\n                         -------------------                                \nAgreement shall be cumulative and shall not preclude assertion by any\nIndemnified Party of any other rights or the seeking of any and all other\nremedies against any Indemnifying Party.\n\n                                  ARTICLE III\n                                    RELEASE\n\n          Section 3.01.  General Release.  (a)  Blockbuster for itself and on\n                         ---------------                                     \nbehalf of its Subsidiaries hereby releases, remises and forever discharges each\nof Viacom and its Subsidiaries or Affiliates and any of their Representatives\nfrom any losses, obligation or responsibility for any and all past actions or\nfailures to take action, including any actions which may be deemed to have been\nnegligent or grossly negligent, relating to, resulting from or arising out of\nthe operation or conduct of any assets, businesses and operations managed or\noperated by, or operationally related or ancillary to, directly or indirectly,\nthe Blockbuster Business and the Viacom Business, except for any Losses,\nobligation or responsibility for any willful or intentional misconduct in the\noperation or conduct of the Blockbuster Business or the Viacom Business prior to\nthe date hereof.\n\n          (b) Viacom for itself and on behalf of its Subsidiaries hereby\nreleases, remises and forever discharges each of Blockbuster and its\nSubsidiaries or Affiliates and any of their Representatives from any losses,\nobligation or responsibility for any and all past actions or failures to take\naction, including any actions which may be deemed to have been negligent or\ngrossly negligent, relating or ancillary to, resulting from or arising out of\nthe operation or conduct of any assets, businesses and operations managed or\noperated by, or operationally related to, directly or indirectly, the\nBlockbuster Business and the Viacom Business, except for any Losses, \n\n                                       8\n\n \nobligation or responsibility for any willful or intentional misconduct in the\noperation or conduct of the Blockbuster Business or the Viacom Business prior to\nthe date hereof.\n\n          (c) Nothing set forth in subsections (a) and (b) shall limit or\notherwise affect any party's rights or obligations pursuant to, or contemplated\nby the Intercompany Agreements.\n\n                                  ARTICLE IV\n                                 MISCELLANEOUS\n\n          Section 4.01.  Further Agreements.  (a)  Blockbuster agrees, and\n                         ------------------                               \nBlockbuster will cause its Subsidiaries, to do all things necessary to (i)\nmaintain and conduct its business and operations, in a commercially reasonable\nmanner, including without limitation (x) paying, on a timely basis, principal\nand interest in respect to its debt and rent in respect to leases and (y)\ncomplying with its obligations under any credit agreement, indenture, lease,\nguarantee or other agreement or document, and (ii) minimize any obligation\nViacom or any of its Subsidiaries (other than Blockbuster and its Subsidiaries)\nmay have under any standby, letter of credit, guarantee or otherwise.\n\n          (b) Viacom agrees, and Viacom will cause its Subsidiaries, to do all\nthings necessary to (i) maintain and conduct its business and operations, in a\ncommercially reasonable manner, including without limitation (x) paying, on a\ntimely basis, principal and interest in respect to its debt and (y) complying\nwith its obligations under any credit agreement, indenture, lease, guarantee or\nother agreement or document, and (ii) minimize any obligation Blockbuster or any\nof its Subsidiaries may have under any standby, letter of credit, guarantee or\notherwise.\n\n          Section 4.02.  Amendments.  This Agreement shall not be supplemented,\n                         ----------                                            \namended or modified in any manner whatsoever (including without limitation by\ncourse of dealing or of performance or usage of trade) except in writing signed\nby the parties.\n\n          Section 4.03.  Successors and Assignment.  This Agreement shall be\n                         -------------------------                          \nbinding upon and inure to the benefit of the parties and their respective\nsuccessors and permitted assigns. Except as set forth in Section 4.04 hereof,\nthis Agreement may not be assigned by either party without the express written\nconsent of the other party (which consent shall not be unreasonably withheld).\n\n          Section 4.04.  Consolidation, Merger and Sale of Assets.  Until seven\n                         ----------------------------------------              \n(7) years after the date hereof, in the event that Blockbuster consolidates,\nmerges, sells assets or engages in any other similar transaction and Blockbuster\nis required, pursuant to an anti-consolidation, merger and\/or sale of assets\ncovenant or other similar covenant contained in the then existing credit\nagreement of Blockbuster, as it may be amended, restated, supplemented,\nrefinanced, extended or otherwise modified from time to time, to obtain the\nconsent of the banks who are parties thereto and, in obtaining such consent,\nsuch banks receive a guarantee, security interest or protective covenant,\nBlockbuster shall give the same guarantee, security interest or protective\n \n\n                                       9\n\n \ncovenant pari passu (if applicable) to Viacom; provided that if (x) there is no\n         ---- -----\nanti-consolidation, merger and\/or sale of assets covenant or other similar\ncovenant contained in such credit agreement at such time or (y) there is no such\ncredit agreement existing at such time, the anti-consolidation, merger and\/or\nsale of assets covenant or other similar covenant contained in the latest credit\nagreement that contained such covenants will be incorporated by reference herein\nand, if consent is required under such covenant, Blockbuster must obtain\nViacom's written consent prior to any consolidation, merger, sale of assets or\nsimilar transaction, provided, that Viacom's consent shall not be required if\n                     --------\nthe surviving corporation of the consolidation or merger or the acquiror of\nassets agrees to assume all of the obligations of Blockbuster hereunder (without\nrelease of any assignor); provided, however, that this Section 4.04 does not\n                          --------  -------\napply if the Split-Off (or other transaction whereby Blockbuster ceases to be a\nSubsidiary of Viacom) has not been consummated.\n\n          Section 4.05.  Severability.  Wherever possible, each provision of\n                         ------------                                       \nthis Agreement shall be interpreted in such a manner as to be effective and\nvalid under applicable law.  If any portion of this Agreement is declared\ninvalid for any reason in any jurisdiction, such declaration shall have no\neffect upon the remaining portions of this Agreement, which shall continue in\nfull force and effect as if this Agreement had been executed with the invalid\nportions thereof deleted; provided, that the entirety of this Agreement shall\n                          --------                                           \ncontinue in full force and effect in all other jurisdictions.\n\n          Section 4.06.  Entire Agreement.  Other then the other Intercompany\n                         ----------------                                    \nAgreements, this Agreement constitutes the entire agreement of the parties\nhereto with respect to the subject matter hereof and thereof and supersede all\nprior agreements and undertakings, both written and oral, between the parties\nwith respect to the subject matter hereof and thereof.\n\n          Section 4.07.  Notices.  All notices, consents, requests, approvals,\n                         -------                                              \nand other communications provided for or required herein, and all legal process\nin regard thereto, must be in writing and shall be deemed validly given, made or\nserved, (a) when delivered personally or sent by telecopy to the facsimile\nnumber indicated below with a required confirmation copy sent in accordance with\nsubsection (c) below; or (b) on the next business day after delivery to a\nnationally-recognized express delivery service with instructions and payment for\novernight delivery; or (c) on the fifth (5th) day after deposited in any\ndepository regularly maintained by the United States postal service, postage\nprepaid, certified or registered mail, return receipt requested, addressed to\nthe following addresses or to such other address as the party to be notified\nshall have specified to the other party in accordance with this section:\n\n          If to Viacom:\n\n               Viacom Inc.\n               1515 Broadway\n               New York New York 10036\n               Attention: Michael D. Fricklas, General Counsel\n\n                                       10\n\n \n               Phone Number: 212-258-6070\n               Fax Number: 212-258-6099\n\n          If to Blockbuster:\n\n               Blockbuster Inc.\n               1201 Elm Street\n               Dallas, Texas 75270\n               Attention: Ed Stead, General Counsel\n               Phone Number: 214-854-3499\n               Fax Number: 214-854-3677\n\n          Section 4.08.  Governing Law.  This Agreement shall be governed by and\n                         -------------                                          \nconstrued in accordance with the laws of the State of New York.  Each of the\nparties hereto agrees that any dispute relating to or arising from this\nAgreement or the transactions contemplated hereby shall be resolved only in the\ncourt of the State of New York sitting in the County of New York or the United\nStates District Court for the Southern District of New York and the appellate\ncourt having jurisdiction of appeals in such courts.  In that context, and\nwithout limiting the generality of the foregoing, each of the parties hereby\nirrevocably and unconditionally:\n\n          (a) submits for itself and its property in any legal suit, action or\nproceeding relating to this Agreement or any transaction contemplated hereby, or\nfor recognition and enforcement of any judgment in respect thereof, to the\nexclusive jurisdiction of the courts of the State of New York sitting in the\nCounty of New York or the United States District Court for the Southern District\nof New York and appellate court having jurisdiction of appeals in such courts,\nand each of the parties hereto irrevocably and unconditionally agrees that all\nclaims in respect of any such suit, action, or proceeding shall be heard and\ndetermined in such New York State court or, to the extent permitted by law, in\nsuch federal court;\n\n          (b) consents that any such suit, action or proceeding may and shall be\nbrought in such courts and waives any objection that it may now or hereafter\nhave to the venue or jurisdiction or any such action or proceeding in such court\nor that such action or proceeding was brought in an inconvenient forum and\nagrees not to plead or claim the same;\n\n          (c) agrees that service of process in any such action or proceeding\nmay be effected by mailing a copy thereof by registered or certified mail (or\nany substantially similar form of mail), postage prepaid, to such party in its\naddress as provided in Section 4.07 hereof;\n\n          (d) agrees that nothing herein shall affect the right to effect\nservice of process in any other manner permitted by New York law; and\n\n                                       11\n\n \n          (e) agrees that this Agreement has been entered into in the State of\nNew York and performed in part in the State of New York.\n\n          Section 4.09.  Counterparts.  This Agreement may be executed in two or\n                         ------------                                           \nmore counterparts, each of which shall be deemed an original, and all of which\nshall constitute one and the same instrument.\n\n                                       12\n\n \n     IN WITNESS WHEREOF, the parties have caused this Agreement to be executed\nas of the date first written above by their respective officers thereunto duly\nauthorized.\n\n\n                              VIACOM INC.\n\n\n                              By: MICHAEL D. FRICKLAS\n                                 ----------------------------------\n                                  Name:  Michael D. Fricklas\n                                  Title: Sr. Vice President, General\n                                         Counsel and Secretary\n\n                              BLOCKBUSTER INC.\n\n\n                              By: EDWARD B. STEAD\n                                 ----------------------------------\n                                  Name:  Edward B. Stead\n                                  Title: Exec. Vice President, General\n                                         Counsel and Secretary\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6911,9252],"corporate_contracts_industries":[9469,9465],"corporate_contracts_types":[9622,9628],"class_list":["post-43545","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-blockbuster-inc","corporate_contracts_companies-viacom-inc","corporate_contracts_industries-media__rental","corporate_contracts_industries-media__broadcasting","corporate_contracts_types-planning","corporate_contracts_types-planning__separation"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43545","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43545"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43545"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43545"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43545"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}