EXHIBIT 10.2
AMENDMENT NO. 1
TO
FIVE-YEAR CREDIT AGREEMENT
This AMENDMENT NO. 1, dated as of May 12, 2005 (this "Amendment"), is
made by and among VIACOM INC., a Delaware corporation ("Viacom" or the
"Borrower"), the banks listed on the signature pages of this Amendment as
"Lenders" (the "Lenders"), and JPMORGAN CHASE BANK, N.A. (formerly known as
JPMorgan Chase Bank), as administrative agent for the Lenders (the
"Administrative Agent").
PRELIMINARY STATEMENT:
Viacom, Viacom International Inc., a Delaware corporation ("Viacom
International"), the Lenders, the Administrative Agent, Citibank, N.A., as
Syndication Agent, and Bank of America, N.A., Deutsche Bank Securities, Inc. and
The Bank of Tokyo-Mitsubishi, Ltd., New York Branch, as Co-Documentation Agents,
previously entered into that certain Five-Year Credit Agreement, dated as of
February 19, 2004 (the "Existing Agreement"; the Existing Agreement, as amended
by this Amendment, being referred to herein as the "Amended Agreement"). The
Borrower now wishes to amend the Existing Agreement in certain particulars. The
Required Lenders and the Administrative Agent have agreed to such amendments, on
the terms and conditions set forth herein. The parties therefore agree as
follows (capitalized terms used but not defined herein having the meanings
assigned such terms in the Existing Agreement):
SECTION 1. Amendments to Existing Agreement. The Existing Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2 hereof, hereby amended as follows:
(a) References to JPMorgan Chase. Each reference in the Existing
Agreement to (i) the phrase "JPMorgan Chase Bank, a New York banking
corporation" is hereby deleted in its entirety and the new phrase "JPMorgan
Chase Bank, N.A., a national banking association" is substituted therefor, (ii)
the phrase "JPMorgan Chase Bank" is hereby deleted in its entirety and the new
phrase "JPMorgan Chase Bank, N.A." is substituted therefor, and (iii) the phrase
"JPMorgan Securities Inc." is hereby deleted in its entirety and the phrase
"J.P. Morgan Securities Inc." is substituted therefor.
(b) Consolidated EBITDA. The definition of "Consolidated EBITDA"
contained in Section 1.1 is hereby amended by deleting the phrase "on the
Disposition of businesses and (iii) pension settlement charges" in its entirety
and
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substituting therefor the new phrase "on the Disposition of businesses,
(iii) pension settlement charges and (iv) non-cash charges associated with
grants of stock options, employee stock purchase plans and other equity-based
compensation awards to employees and directors, in each case under this clause
(iv) that are expensed in accordance with SFAS No. 123r".
(c) Discontinued Operations. The definition of "Discontinued
Operations" contained in Section 1.1 is hereby amended by deleting the date
"December 14, 1997" in its entirety and substituting therefor the new date
"November 14, 1997".
(d) Existing $1.5 Billion Five-Year Credit Agreement. The definition of
"Existing $1.5 Billion Five-Year Credit Agreement" contained in Section 1.1 is
hereby amended by deleting the phrase "Amendment No. 3 thereto, dated as of
February 19, 2004" in its entirety and substituting therefor the new phrase
"Amendment No. 3 thereto, dated as of February 19, 2004, and Amendment No. 4
thereto, dated as of May 12, 2005".
(e) Material Adverse Effect. The definition of "Material Adverse
Effect" contained in Section 1.1 is hereby amended by deleting the phrase "SFAS
No. 142 and/or SFAS No. 144" in its entirety and substituting therefor the new
phrase "SFAS No. 142, SFAS No. 144 and/or SFAS No. 123r".
(f) New Definitions. The following new definitions are hereby added to
Section 1.1 in the appropriate alphabetical order:
"$2.5 Billion 18-Month Credit Agreement" shall mean the
18-Month Credit Agreement, dated as of May 12, 2005, among Viacom,
Viacom International, each subsidiary borrower party thereto, the
lenders party thereto, JPMorgan Chase, as administrative agent,
Citibank, N.A., as syndication agent, and Bank of America, N.A.,
Deutsche Bank Securities, Inc. and The Bank of Tokyo-Mitsubishi, Ltd.,
New York Branch, as co-documentation agents, as the same may be
amended, supplemented, restated or otherwise modified from time to
time.
"Letter of Credit Sublimit" shall mean, at any time, the
excess of (a) $750,000,000 over (b) the "Aggregate LC Exposure" (as
defined in the $2.5 Billion 18-Month Credit Agreement) under the $2.5
Billion 18-Month Credit Agreement at such time.
"SFAS" shall have the meaning assigned to such term in Section
1.2(b).
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"Viacom Credit Agreements" shall mean the Existing $1.5
Billion Five-Year Credit Agreement and the $2.5 Billion 18-Month Credit
Agreement.
(g) Letters of Credit. Section 2.7(a) is hereby amended by deleting the
phrase "in no event shall the Aggregate LC Exposure exceed $750,000,000" in its
entirety and substituting therefor the new phrase "in no event shall the
Aggregate LC Exposure exceed the Letter of Credit Sublimit".
(h) Fees. Section 2.9(a) is hereby amended by deleting the phrase "and
December, on the Revolving Credit Maturity Date or such earlier date on which
the Commitments shall be terminated, commencing on the first of such dates to
occur after the Closing Date, and" in its entirety and substituting therefor the
new phrase "and December (commencing on the first of such dates to occur after
the Closing Date), on the Revolving Credit Maturity Date or such earlier date on
which the Commitments shall be terminated, and".
(i) Corporate Existence. Section 3.1 is hereby amended by deleting the
phrase "or as proposed to be" in its entirety.
(j) Limitation on Subsidiary Indebtedness. Section 5.6 is hereby
amended by deleting the phrase "existing at any time under the Existing $1.5
Billion Five-Year Credit Agreement" contained in subsection (d) thereof in its
entirety and substituting therefor the new phrase "existing at any time under
the Viacom Credit Agreements".
(k) Notices. Section 9.1(c) is hereby amended in its entirety to read
as follows:
"(c) if to the Administrative Agent, to it at JPMorgan Chase
Bank, N.A., 270 Park Avenue, New York, New York 10017, Attention: James
Stone (Telecopy No. (212) 270-5127), with a copy to (i) JPMorgan Chase
Bank, N.A., Loan and Agency Services, 1111 Fannin Street, 10th Floor,
Houston, Texas 77002, Attention: MaryAnn Bui (Telecopy No. (713)
750-2358) and (ii) if such notice or other communication relates to a
Multi-Currency Revolving Loan (including any Revolving Credit Borrowing
Request for a Multi-Currency Revolving Loan), J.P. Morgan Europe
Limited, 125 London Wall, London, England EC2Y 5AJ, United Kingdom,
Attention: Caroline Walsh (Telecopy No. 011-44-207-777-2360);"
(l) Patriot Act Notice. Article IX is hereby amended by adding the
following new Section 9.17 at the end thereof:
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"SECTION 9.17. Patriot Act Notice. Each Lender and each Agent
(for itself and not on behalf of any other party) hereby notifies the
Borrowers and Viacom International that, pursuant to the requirements
of the USA Patriot Act, Title III of Pub. L. 107-56, signed into law
October 26, 2001 (the "Patriot Act"), it is required to obtain, verify
and record information that identifies the Borrowers and Viacom
International, which information includes the name and address of the
Borrowers and Viacom International and other information that will
allow such Lender or such Agent, as applicable, to identify the
Borrowers and Viacom International in accordance with the Patriot Act."
(m) Schedule of Guarantees. Schedule 1.1(a) to the Credit Agreement is
hereby deleted in its entirety and Schedule 1.1(a) attached hereto is
substituted therefor.
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written (the "Effective Date") when, and
only when, (a) the $2.5 Billion 18-Month Credit Agreement (as defined in Section
1(h) above) shall have become effective pursuant to the terms thereof and (b)
the Administrative Agent shall have received (i) counterparts of this Amendment
executed by Viacom, the Required Lenders and the Administrative Agent (provided,
that any Lender that executes the $2.5 Billion 18-Month Credit Agreement (as
defined in Section 1(h) above) shall be deemed to have delivered a counterpart
of this Amendment), and (ii) the consent of Viacom International, substantially
in the form of Exhibit A hereto, duly executed by an authorized officer of
Viacom International.
SECTION 3. Representations and Warranties of Borrower. The Borrower
hereby represents and warrants as follows:
(a) No Breach, etc. None of the execution and delivery of this
Amendment, the consummation of the transactions contemplated herein and in the
Amended Agreement and compliance with the terms and provisions hereof and
thereof will conflict with or result in a breach of, or require any consent
under, the charter or By-laws (or other equivalent organizational documents) of
the Borrower, or any applicable law or regulation, or any order, writ,
injunction or decree of any Governmental Authority, or any material agreement or
instrument to which Viacom or any of its Material Subsidiaries is a party or by
which any of them is bound or to which any of them is subject, or constitute a
default under any such agreement or instrument, or result in the creation or
imposition of any Lien upon any of the revenues or assets of Viacom or any of
its Material Subsidiaries pursuant to the terms of any such agreement or
instrument.
(b) Corporate Action. The Borrower has all necessary corporate power
and authority to execute and deliver this Amendment and to perform its
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obligations under this Amendment and the Amended Agreement; the execution and
delivery by the Borrower of this Amendment, and the performance by the Borrower
of this Amendment and the Amended Agreement, have been duly authorized by all
necessary corporate action on the Borrower's part; this Amendment has been duly
and validly executed and delivered by the Borrower; and each of this Amendment
and the Amended Agreement constitutes a legal, valid and binding obligation of
the Borrower, enforceable in accordance with its terms except as such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws of general applicability
affecting the enforcement of creditors' rights and (ii) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(c) Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any Governmental Authority are necessary for the
execution, delivery or performance by the Borrower of this Amendment or for the
validity or enforceability hereof.
SECTION 4. Reference to and Effect on the Existing Agreement. (a) Upon
the effectiveness of this Amendment: (i) each reference in the Existing
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Existing Agreement shall mean and be a reference to the Amended
Agreement; and (ii) each reference in any other Loan Document to "the Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Existing Agreement shall mean and be a reference to the Amended Agreement.
(b) Except as specifically amended above, the Existing Agreement shall
continue to be in full force and effect and is hereby in all respects ratified
and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Lenders or the Administrative Agent under the Existing
Agreement or any other Loan Document, nor constitute a waiver of any provision
of the Existing Agreement or any other Loan Document.
SECTION 5. Execution in Counterparts. This Amendment may be executed in
two or more counterparts, each of which constitutes an original but all of which
when taken together shall constitute but one contract. In furtherance of the
foregoing, it is understood and agreed that signatures hereto submitted by
facsimile transmission shall be deemed to be, and shall constitute, original
signatures.
SECTION 6. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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SECTION 7. Severability. In the event any one or more of the provisions
contained in this Amendment should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 8. Headings. Section headings used herein are for convenience
of reference only, are not part of this Amendment and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Amendment.
[Remainder of the page left blank intentionally; Signature page to follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
VIACOM INC.
By: /s/ Michael J. Dolan
-----------------------------------
Name: Michael J. Dolan
Title: Executive Vice President &
Chief Financial Officer
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and as agent
for the Lenders party to the $2.5
Billion 18-Month Credit Agreement
By: /s/ James L. Stone
-----------------------------------
Name: James L. Stone
Title: Managing Director
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Lenders
JPMORGAN CHASE BANK, N.A., as a Lender
By: /s/ James L. Stone
-----------------------------------
Name: James L. Stone
Title: Managing Director
CITIBANK, N.A., as a Lender
By: /s/ Eileen L. Casson
-----------------------------------
Name: Eileen L. Casson
Title: Vice President
BANK OF AMERICA, N.A., as a Lender
By: /s/ Thomas J. Kane
-----------------------------------
Name: Thomas J. Kane
Title: Senior Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH, as a Lender
By: /s/ Linda Tam
-----------------------------------
Name: Linda Tam
Title: Authorized Signatory
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DEUTSCHE BANK AG, NEW YORK BRANCH, as
a Lender
By: /s/ Andreas Neumeier
-----------------------------------
Name: Andreas Neumeier
Title: Director
By: /s/ Yvonne Preil
-----------------------------------
Name: Yvonne Preil
Title: Vice President
BARCLAYS BANK PLC, as a Lender
By: /s/ Nicholas Bell
-----------------------------------
Name: Nicholas Bell
Title: Director
SUMITOMO MITSUI BANKING CORPORATION,
as a Lender
By: /s/ Yoshihiro Hyakutome
-----------------------------------
Name: Yoshihiro Hyakutome
Title: Joint General Manager
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MIZUHO CORPORATE BANK, LTD., as a
Lender
By: /s/ Mark Gronich
-----------------------------------
Name: Mark Gronich
Title: Senior Vice President
THE BANK OF NEW YORK, as a Lender
By: /s/ Steven J. Correll
-----------------------------------
Name: Steven J. Correll
Title: Vice President
WESTLB AG, as a Lender
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
ABN AMRO BANK N.V., as a Lender
By: /s/ David Carrington
-----------------------------------
Name: David Carrington
Title: Director
By: /s/ Shilpa Parandekar
-----------------------------------
Name: Shilpa Parandekar
Title: Vice President
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DRESDNER BANK A.G., NEW YORK AND
GRAND CAYMAN BRANCHES, as a Lender
By: /s/ Brian Haughney
-----------------------------------
Name: Brian Haughney
Title: Director
By: /s/ Brian Smith
-----------------------------------
Name: Brian Smith
Title: Managing Director
FLEET NATIONAL BANK, as a Lender
By: /s/ Thomas J. Kane
-----------------------------------
Name: Thomas J. Kane
Title: Senior Vice President
LEHMAN BROTHERS BANK, FSB, as a Lender
By: /s/ Janine M. Shugan
-----------------------------------
Name: Janine M. Shugan
Title: Authorized Signatory
MELLON BANK, N.A., as a Lender
By: /s/ Laurie G. Dunn
-----------------------------------
Name: Laurie G. Dunn
Title: First Vice President
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MERRILL LYNCH BANK USA, as a Lender
By: /s/ Frank Stepan
-----------------------------------
Name: Frank Stepan
Title: Vice President
THE ROYAL BANK OF SCOTLAND PLC, as a
Lender
By: /s/ Andrew Wynn
-----------------------------------
Name: Andrew Wynn
Title: Senior Vice President
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ Brenda S. Insull
-----------------------------------
Name: Brenda S. Insull
Title: Authorized Signatory
UBS LOAN FINANCE LLC, as a Lender
By: /s/ Edward Cripps
-----------------------------------
Name: Edward Cripps
Title: Director Banking Products
Services, US
By: /s/ Marie A. Haddad
-----------------------------------
Name: Marie A. Haddad
Title: Associate Director Banking
Products Services, US
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WACHOVIA BANK, N.A., as a Lender
By: /s/ Russ Lyons
-----------------------------------
Name: Russ Lyons
Title: Director
CREDIT SUISSE FIRST BOSTON acting
through its CAYMAN ISLANDS BRANCH,
as a Lender
By: /s/ Thomas S. Hall
-----------------------------------
Name: Thomas S. Hall
Title: Vice President
By: /s/ Doreen Barr
-----------------------------------
Name: Doreen Barr
Title: Associate
LLOYDS TSB BANK PLC, as a Lender
By: /s/ Andrew Roberts
-----------------------------------
Name: Andrew Roberts
Title: VP Corporate Banking R089
By: /s/ Michael J. Gilligan
-----------------------------------
Name: Michael J. Gilligan
Title: Director, Financial
Institutions, USA G311
SOCIETE GENERALE, as a Lender
By: /s/ Mark Vigil
-----------------------------------
Name: Mark Vigil
Title: Managing Director
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UFJ BANK LIMITED, as a Lender
By:
-----------------------------------
Name:
Title:
NATIONAL AUSTRALIA BANK LIMITED, as a
Lender
By:
-----------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ Colleen B. McEvoy
-----------------------------------
Name: Colleen B. McEvoy
Title: Vice President